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Friday, 15 May 1970

Mr KILLEN (Moreton) (Minister for the Navy) - To the motion that the House take note of the paper the Opposition has moved an amendment in the form of a motion of censure. The amendment is supported by 2 groups in the House. I may say, with respect, that one group supports it out of the simple prejudice of partisanship. The other group - which consists of at least one honourable member who has declared himself - is supporting the censure motion out of a spirit of simple conviction. The charge against the Government is one of dishonour, of failing to meet its obligation to honour an agreement. That is a shorthand account of the charge. The evidence falls within a very short compass. Let me assure the honourable member for Prospect (DrKlugman), who is trying to interject, that I have picked many juries in my lifetime and I always strive to keep people like him off them - and I have had 15 years experience. I repeat that the evidence falls within a very short compass. The only evidence upon which judgment is to be made is that contained in the minutes of the Australian Minerals Council. 1 understand that the only meetings of the Council which are relevant to a consideration of this matter are 2 meetings which were held in 1969. The first meeting was held on 3rd March 1969. At the beginning of that meeting the then Minister for National Development, the honourable member for Farrer, made a statement. In that statement he said among other things that in the case of off-shore petroleum both the States and the Federal Government asserted jurisdiction over the seabed beneath territorial waters and over the outer continental shelf. He continued:

The essential element in the petroleum arrangement is contained in the fourth recital set out at the beginning of both the Commonwealth-State agreement and the principal Act of the legislation itself. This states that the Governments decided, in the national interest that, without raising questions concerning, and without derogating from their respective constitutional powers, they should co-operate for the purpose of ensuring the legal effectiveness of authorities to explore for, or to exploit the petroleum resources of the submerged lands off our coasts.

The honourable gentleman went on: 1 think it is well known that it has always been the Commonwealth's view that, were the matter to be litigated, the Commonwealth would be successful beyond the 3 mile limit.

He continued:

Inside the 3 mile limit the issue is not so clear; although the Commonwealth felt that there were arguments in support of a decision for Commonwealth jurisdiction.

I have heard today charges about ambiguity of language. I think that is clear. I think it is pretty definitive. I would be interested to hear an argument to the contrary. Then my honourable friend continued:

As to off-share minerals other than petroleum, the Commonwealth is of the view that it should proceed on the footing that it enjoys total rights outside the 3 mile limit. It proposes to legislate--

This is the key to the honourable gentleman's statement that he made at the meeting on 3rd March -

It proposes to legislate in pursuance of this position.

Then my honourable friend continued with his statement. After the statement had concluded I take it that there was argument around the table. The then Minister was asked a question by Mr Fife from New South Wales. The Minister replied, and then Mr Fife asked this question:

We would like your assurance, if it is possible for you to give it, that there will be further consultation with the States before the Commonwealth legislation is introduced.

The honourable and gallant gentleman replied: 1 have no difficulty in giving that assurance.

This was on 3rd March 1969. Mr Griffith from Western Australia stated:

One cannot be too forthright in a matter of this nature because there are other people around the table who have their own views, but 1 personally would like to be absolutely sure that there will be no legislation presented to the Commonwealth Parliament which would face us with a fait accompli as far as the continental shelf is concerned.

The then Minister for National Development, Mr Fairbairn, said:

I can certainly give an assurance that the States will be consulted again before any legislation is brought in.

It has been said on both sides of the House that the honourable gentleman's honour is in no way being assailed, lt would be an impertinence on the part of anybody in this Parliament to seek to assail the honourable gentleman's honour. I do not wish to offend him in any shape or form. I want to put a proposition to my honourable friend and to those who may be disposed to join with him - those who may seek to support him. They are the ones to whom, out of sheer honesty, I address my argument, because it is to no avail seeking to put an argument to people whose minds are already closed. My appeal to the honourable and gallant gentleman is this: Here is sheer prejudice. Here, as far as the honourable gentleman is concerned, is an honest and deeply held conviction that an injustice has been done. I seek to address my argument to the honourable gentleman and to those who may join with him to show, as one who read the minutes and looked at the evidence on the basis of sheer and utter neutrality, that the honourable member for Farrer entered into the obligation on 3rd March 1969 to consult further with the States on the issue of the search by the Commonwealth to assert its sovereignty in the matter so denned. When the meeting was held on 26th September - I would have thought, speaking for myself - that obligation had been discharged. I know this troubles my honourable friend because he lakes the view that the obligation was not discharged. Before I deal with his argument may I just turn to the highly fraudulent argument put by the Leader of the Opposition (Mr Whitlam).

Mr Stewart - I rise to a point of order. The Minister for the Navy a moment ago talked about prejudice from this side of the House. He is now talking about highly fraudulent arguments. Both those terms are offensive to me. 1 do not give him the right to say that I am prejudiced in a matter like this. I do not think he has the right to say that the Leader of the Opposition used fraudulent arguments. I ask for the withdrawal of both those statements.

Mr DEPUTY SPEAKER (Mr Lucock - I suggest to the Minister that he might withdraw the remarks in relation to the argument put by the Leader of the Opposition.

Mr KILLEN - 1 will. 1 withdraw the description of the argument as fraudulent. When the Leader of the Opposition referred to the March meeting he made no effort whatsoever to say that there was a subsequent meeting on 26th September in the terms of the request by Mr Fife and by Mr Griffith. The then Minister for National Development had given an undertaking that there would be further consultation. 1 must tell the honourable gentleman with no acerbity at all that when I saw that undertaking given and then saw that the meeting was held subsequently on 26th September I for one took the view that any obligation was discharged. I put this argument with no heat at all. When one turns to the meeting held on 26th September I believe 2 conclusions are open. The first conclusion is that the Minister for National Development had some difficulty in giving an undertaking not because of personal views but because of the whole form of political events at that time. If one looks at the minutes of the meeting held on 26th September one finds that when the honourable gentleman was asked the position regarding any future consultations - and this point was brought out this morning in a most detached and sensible way by the honourable member for Corangamite (Mr Street) - he said:

It would be quite impossible for me to say what the Government is likely to do, not knowing, firstly, whether we will be the Government after the election and, secondly, whether I will be the Minister.

I have no wish to presume on an old friendship nor to be impertinent to the honourable member for Farrer, but the honourable gentleman will concede that 2 contingencies are contained in that statement. The first contingency is that the Government will be returned. The second contingency is that he would be the Minister. Could I, not from the viewpoint of wanting to take any fourth form debating points put this proposition to the honourable gentleman and to the House: What would have been the position of the States if the Gorton Government had not been returned at the last election. Am I to understand that the Opposition out of a willingness to meet what it describes as co-operative federalism would have sought to honour that obligation?

I put this to the honourable gentleman: This is a new government and governments have various ideas and attitudes. So even if, for the purpose of accepting my honourable friend's argument, I assume that what he said is the only interpretation that is open, I put to the honourable gentleman that this being a completely new Government, new considerations could well arise. Now that the judgment of the International Court of Justice with respect to the North Sea continental shelf case has been given and the full significance of it is beginning to appear,I for one believe there are dramatically new and highly critical considerations to be canvassed. For example, if it were to be held that inmunicipal law the States did have sovereignty over the continental shelf, there are ample grounds for believing that an independent New Guinea could, as against the State of Queensland, lay claim to the sovereignty of the whole of the continental shelf stretching between the two countries simply because, as a geographic and geological phenomenon, the continental shelf there is unbroken.

The decision of the International Court of Justice goes straight to that point and says that, irrespective of theconvention on the continental shelf, since the beginning of time, where the continental shelf is appurtenant to a State, that State has sovereignty over the continental shelf. There is no difficulty where there is a prolongation of the continental shelf out into the sea, but the difficulty arises where 2 States face each other or are adjacent to each other. I put to my honourable friend that this is a new consideration which may or may not have influenced the last Government but it is a consideration which can and must influence this Government. I now take the next consideration which is surely highly relevant. There is a new conference on the law of the sea about to be summoned. Australia would be the only nation in the world to go to that conference with the units of its federation dithering on the point as to whether the States or the Commonwealth had sovereignty over these areas. I think this is a powerful and a persuasive argument for having the matter settled one way or the other and for not entering into such arrangements as may seem fit though they may not approximate the arrangements enteredinto by the United States of America with California and the other littoral States. This is a powerful consideration and it is highly relevant.

Is the interpretation that the honourable member for Farrer puts upon the conference of State Ministers for Mines on 26th September the only one which is open? As was pointed out by the honourable member for Corangamite this morning, the honourable member for Farrer had the greatest difficulty in giving an undertaking regarding further consultation. The minutes of the conference, at page 17, show that, when the honourable member for Farrer was asked about the difficulties of a timetable, he said:

The writs are not returned until ( think November 24th so no new Cabinet can be announced until that date. After that undoubtedly I will put your representations to the Government - if I still happen to be the responsible Minister.

With great respect to those who say that does not mean what it says, there is a plain contingency there and I canvass the contingencies that were open. It is my reading of the minutes of the conference on 26th September that the State Ministers rejected the Commonwealth's decision to legislate unilaterally to determine where sovereignty lay. The minutes from page 5 to the end show that the discussions which ensued related to the regime. What sort of regime? What sort of administrative arrangements were to be made? 1 say to honourable members that this is a case where 2 individuals with the utmost of goodwill have simply misunderstood each other. I think this is the highest point that one can put to the honourable member's argument. Two individuals with the utmost good faith have completely misunderstood each other. This would not be the first time that this has happened. How many honourable members in this place have, during the course of negotiations-

Debate interrupted.

Mr DEPUTY SPEAKER (Mr Lucock - Order! It being 4 p.m., in accordance with the order of the House of 16th April, I propose the question:

That the House do now adjourn.

Mr Hughes - 1 require that the question be put forthwith.

Question resolved in the negative.

Debate resumed.

Mr KILLEN - The last point I want to make is this: I think the highest one can put the argument of the honourable member for Farrer is that there has been a misunderstanding - call it a crude misunderstanding if you like - but I ask all honourable members in this House whether they have not at some time or another during the course of a discussion or negotiation with their best friend arrived at a conclusion when they have said one thing and they have taken the view that their friend has said something completely opposite? I do not believe that this is an occasion upon which this House should be called to censure the Government. I believe that the merits are wholeheartedly in favour of the Government's stand and I appeal to those honourable members who may be disposed to support the censure motion to think earnestly and to think realistically about all the consequences.

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