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Tuesday, 7 December 1971
Page: 4139


Mr WHITLAM (Werriwa) (Leader of the Opposition) - I move:

That so much of the Standing Orders be suspended as would prevent -

(a)   Order of the day No. 53, Government Business, for the resumption of the debate on the second reading of the Territorial Sea and Continental Shelf Bill 1970 being called on; and

(b)   Consideration of the Bill at all stages having precedence until disposed of. 1 realise that this is a somewhat contentious matter and I assure you, Mr Speaker, at the outset that I will confine my remarks to issues of its urgency. The matter came before the House on 16th April last year; the Bill was introduced by the Minister for National Development (Mr Swartz) who read a speech prepared for the then Minister for Foreign Affairs, now the Prime Minister (Mr McMahon). On all subsequent days last year while the right honourable gentleman remained Minister for Foreign Affairs and since he became Prime Minister, the mat'er has remained on the notice paper under the responsi bility of the Minister for Foreign Affairs. Accordingly, in debating this matter one has to remember that it is a Bill which was sponsored by the present Prime Minister. I will not read or to any extent quote from the second reading speech. I have referred to it earlier as a scholarly one; it is, and I found it convincing. It extends over 7 pages of Hansard. While there may be differences between honourable members on the subject there would be no doubt that the great majority of honourable members support this Bill, and this motion is designed to bring the matter on for debate and decision. I will quote 3 small passages from the second reading speech of the Minister for National Development. He said:

The object of this Bill is to carry our the Government's decision, concisely staled by His Excellency, the Governor-General in his speech at the opening of the present session, to introduce legislation asserting and establishing the exclusive right of the Commonwealth to exercise sovereign control over the resources of the seabed off the Australian coast, from the low water mark to the outer limits of the continental shelf. -

The second passage is as follows:

This question - of the sovereignty under Federal systems - has been specifically answered by the courts in both of the 2 overseas federations which are of particular interest to Australia - the United States and Canada. In the United States, the matter was litigated in the Supreme Court by the State of California, and subsequently by other States. In Canada by virtue of a special legislative provision, the question was referred to the Supreme Court, at the instance of the Federation itself in relation to the Province of British Columbia. In both federations, the Supreme Court answered the basic question in the same way. Sovereign control over the mineral resources of both the territorial sea and the continental shelf was held to be vested in the Federation alone, to the exclusion of the component States or Provinces.

Finally I give another quotation from the Minister's second reading speech. He said:

I have mentioned that this Bill will be followed later in the session by a Bill which will apply a mining code to the offshore areas in respect of which the present Bill establishes Commonwealth authority. That later Bill will provide the detailed rules under which mining titles may be Issued and exploration and exploitation carried on for all minerals other than petroleum.

It will be seen that this matter was mentioned in the Governor-General's Speech opening the Parliament. It was one of the first pieces of legislation; it was to be followed by other pieces of legislation. On the very next sitting day, 21st April last year, this Bill appeared as Government business No. 8 on the notice paper. There were 27 Bills listed after it. On the last sitting day in the autumn session last year, 12th June 1970, it was No. 11. There were still 12 Bills after it on the notice paper. But on the first day of the Budget session last year, 16th August, it was No. 16. It was the last of the Bills listed on the notice paper, and ever since it has been the last of the Bills listed on the notice paper. The House has been, I suggest, extremely patient in this matter. On 16th March this year my colleague, the honourable member for Dawson (Dr Patterson), asked the Prime Minister this question:

On 16th April 1970 the Cabinet, or the Goveminent, after great deliberation introduced into this Parliament the Terrotorial Sea and Continental Shelf Bill as a matter of urgency. The Minister who introduced it said-

I recall that the Minister who introduced it did so on behalf of the then Minister for External Affairs, who by that stage was Prime Minister -

The Government feels that this issue should now be decided once and for all. and without delay'.

The question by the honourable member for Dawson continued:

That was 11 months ago. Will the Prime Minister see that this Cabinet decision, which was taken 1 1 months ago, will now in fact be proceeded with immediately, as his Minister said, and that the Bill is debated in this House without delay?

The Prime Minister, who had sponsored the Bill, replied:

I have tried to make 2 points clear: Firstly that 1 am a party man and secondly that I believe in C:,binet making decisions. I will most certainly consult my Party about the problem mentioned, and 1 will also consult the full Cabinet before anything further is done.

I pass to the present sessional period. I asked the Leader of the House a question about this Bil) on 30th September. I asked the Prime Minister himself a further question about it on 24th of last month. I asked him specifically - it was the third part of a question without notice:

When will the Government proceed with` the Territorial Sea and Continental Shelf Bill which was introduced in April last year on his behalf when he was Minister for External Affairs, which was included in the Governments programme al the election in October 1969 and in the GovernorGeneral's speech opening the Parliament in March last year, but which is at present item 70 on the notice paper? In other words, is ii the pol icy of his Government to proceed with its predecessor's undertaking and his own predecessor's undertaking of 2 years ago?

The right honourable gentleman replied:

The third part of the question obviously is intended to be provocative and mischievous. I will have discussions with my colleague, the Leader of the House, and it will be in his hands as to when the matter is brought before the House for discussion.

That was the 24th of last month. On the 2nd of this month the honourable member for Blaxland (Mr Keating) asked the Prime Minister:

Since he now proposes to raise with the Leader of the House the date on which the Government should proceed with the Bill, should the House understand that he will also immediately initiate the Party room and Cabinet discussion of it which he told the honourable member for Dawson on 16th March would be held before anything further is done?

The Prime Minister replied:

I have not given consideration to this matter for the last few weeks, but I will do so shortly. ( thought I should ask the next question to prod the right honourable gentleman's phenomenal memory, and I asked:

Are we to take it from the answer which the right honourable gentleman has just given to the honourable member for Blaxland that he has not in fact raised with the Leader of the House the possibility of the House debating ibis year this Bill which the Lender of the House read on behalf of the right honourable gentleman when he was Foreign Minister in April last year.

It will be remembered that the right honourable gentleman had told the honourable member for Blaxland that he had not given consideration to it for the last few weeks. The Prime Minister replied:

I have nol had an opportunity to discuss it with the Leader of the House. I will attempt to do so today.

His attempts have failed. The matter is still the last of the Bills on the notice paper - No. 52. Accordingly, if this matter is to be debated in this session - maybe if it is to be debated in this Parliament - it should be debated this week. If it is not debated this week it cannot he debated until the end of February next. It would not then be able to be debated for 2 years after the GovernorGeneral promised that the Government would include it in its legislative programme. It would not be debated until 22 months after the present Prime Minister sponsored the Bill as Minister for External Affairs. The matter has become urgent. One of the most eminent and experienced legal authorities in Australia, the former

Presidentof the World Court, Sir Percy Spender, as far back as 3rd May 1969 at a seminar attended by the then AttorneyGeneral, the honourable member for Parramatta (Mr N. H. Bowen) and by several other Ministers, expressed the opinion which 1 can summarise from a question I asked in May 1969 as follows:

(a)   . . . excluding what are commonly known as inland waters, the territorial boundaries of Queensland and other States end at low water mark, (b) . . . the territorial seas bordering Australia, and the sea bed thereof with all its natural resources, are those of the Commonwealth, not those of any State, and (c) . . . dominion over the sea bed and the natural resources of the whole of the Continental Shelf, commencing at low water mark, and the right to explore and exploit these or permit others to do so, is vested exclusively in the Commonwealth.

I believe that Australians in general recognise that the Great Barrier Reef would not have been preserved but for the undertaking given by the late Prime Minister, Mr Holt, to a great Australian, Mr John Busst, whose enthusiasm on this matter will be of enduring benefit to Australians, and the later initiative taken outside the House in forceful discussion with the Premier of Queensland by the former Prime Minister, the right honourable member for Higgins (Mr Gorton). This is a direct, practical illustration of what the Commonwealth can do and what I believe only the Commonwealth will effectively do.

There are other instances to show how rapidly other federal states are moving on this matter. On 1st September 1968 Mexico, which is a federal state, its official title being Estados Unidos Mexicanos, declared the northern third of the Gulf of California to be part of Mexico's territorial sea. The President pf Mexico made the announcement, not the State Governors. In 1970 the Canadian Parliament passed an Act, the Territorial Sea and Fisheries Zone Act, permitting the Government of Canada to draw fisheries closing lines across the entrances to such bodies of water as the Gulf of Saint Lawrence and the Bay of Fundy, on the Atlantic coast and Queen Charlotte Sound and Dixon Entrance - Hecate Strait on the Pacific coast. The Government of Canada proclaimed the closing lines on 18th December 1970. The Government of Canada made the proclamations. The Parliament of Canada passed the laws. There were no laws by the pro vincial parliaments. There were no proclamations by the provincial governments. Lastly, the federal state of Malaysia in the third week of November this year made a declaration, jointly with Indonesia, at a conference which was attended by Singapore, which noted the declaration that the Strait of Malacca was within their territorial limits. It will be noted that the declaration was not made by any of the relevant States of Malaysia, the Stales on the west coast of West Malaysia. The declaration was made by the Government of Malaysia.

I have given 3 instances of federal states - Mexico, Canada and Malaysia - with which we are familiar, which are large trading and maritime nations in the Pacific and Indian Oceans. There are, of course, innumerable instances in unitary states or in states of uncertain constitutional structure, where such declarations have been made. There is to be an international conference on this matter at Geneva in 1973. It is important that Australia should move decisively and swiftly.

It is very likely, as Sir Percy Spender advised early in 1969 and as the present Prime Minister envisaged in his speech in April 1970, that there will be litigation in this matter. With the greatest expedition and will in the world it might easily take a year for litigation in this matter to come to a conclusion. It is urgent in our national interest, therefore, that this Bill should pass and that any challenges to it should be concluded in 1972. It is unthinkable that Australia should go to this international conference in an uncertain and precarious position. I conclude with a couple of local matters which do not concern the Australian States alone. Last year- Australia and Indonesia made a treaty determining the limits of their territorial seas between West Irian and Australia. I have placed questions on the notice paper concerning the position of Australian and New Zealand territorial seas in the Tasman Sea and also, since 1965, concerning the position of the territorial sea in Torres Strait between Queensland and Papua. On the first matter I was assured on 7th April last that the 2 governments of Australia and New Zealand have not as yet had occasion to exchange views on this subject. There are several atolls, shoals and reefs in the Tasman Sea. New Zealand should be making arrangements with the Australian Government as to the limits between them. Secondly, I was told by the present Minister for Foreign Affairs (Mr N. H. Bowen) on )3th September about the position between Queensland and Papua. He said:

The recommendation of the United Nations Visiting Mission, 1971, on the revision of the border between Papua and Queensland has not yet been drawn to the attention of the Queensland Government.

The question of the revision of the borde between Papua and Queensland is a complex one and involves constitutional and other considerations to which priority attention is being given by the Government.

I do not regard it as a very high priority when the Menzies Government, the Holt Government, the- Gorton Government and the McMahon Government have not yet concluded these negotiations. But the Minister for Foreign Affairs proceeded:

The Queensland Government has indicated thai it supports the 930 or so inhabitants ... in their opposition to any change in their status.

We have here a festering cause of contention between Australia and her nearest neighbour. Tt cannot be settled until the Commonwealth asserts its sovereignty over Australia's territorial seas as all other federal states have clone. The Minister for National Development, who introduced the Bill on behalf of the present Prime Minister when he was Minister for External Affairs, concedes that the greatest depth of the continental shelf between the south coast of Papua and the tip of Cape York is approximately 30 metres.







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