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Tuesday, 7 December 1971
Page: 4144


Mr KILLEN (Moreton) - The strictures of the honourable member for Dawson (Dr Patterson) against the Government in a general sense I reject. But I want to say to the Government, and in particular to the Minister for Nations Development (Mr Swartz), that I entertain a deep sense of dismay and concern with the delay that has attended this measure. It is perfectly true, as the Leader of the Opposition (Mr Whitlam) has said, that this is a matter entitled to exceptional regard. I would like to tell the House why I believe that to be the case. Time is running very much against the Government on this issue and very much against this country. In 1973, pursuant to 2 resolutions of the General Assembly of the United Nations, there will be convened in Geneva a new conference on the law of the sea. At the last count there were 109 nations in the world with a coastline, 109 littoral nations. I feel acutely embarrassed that Australia is the only one which has not settled the question of sovereignty with respect to the territorial sea and with respect to the continental shelf.

There are 11 variants of what is the territorial sea. They range from 3 miles offshore to 200 miles. Historically the member nations of the Commonwealth of Nations have accepted 3 miles but now it is long odds on that at the conference in 1973 the territorial sea, in terms of international law, as distinct from municipal law - that is to say local law - will be laid down definitively at 12 miles. The effect of that throughout the world is going to be of the utmost consequence, and I will tell the House why. No fewer than 116 straits today are high seas. In other words ships, be they warships or any other types of ships, can transit them with all the freedom conferred by their seas. This country does a considerable volume of trade with Asian countries. There are 2 archipelagic nations, Indonesia and the Philippines, in the Asian area and many problems will attend ships using the straits between the islands of those countries. In respect to Queensland there is an acute problem. There is at the moment a speckled jurisdication and I defy any fisherman to say with certainty what waters he is in - Queensland waters so-called, international waters or the waters with respect to which this Parliament claims that it has responsibility.

What is the position of the States and the Commonwealth of Australia? Already one has seen evidence - and this is to be judged by the views expressed by State Crown law officers presented to the Senate Select Committee on Off-shore Petroleum Resources - claiming that the right to pass legislation with respect to the peace, good order and government of a State gives the State the right to the continental shelf. For myself 1 say that this is an absurdity. Australia has the largest continental shelf in the world. It is unbroken with respect to Australia, qua Australia's and New Guinea. In 1969 when the International Court of Justice gave its decision in the North Sea continental shelf case it laid down a rule, and this is part of the rationale of the decision, which I would have thought every person in this country who is interested in this matter would have viewed with very considerable alarm, lt was that the equidistant principle with respect to 2 nations fronting each other where there is an unbroken continental shelf is not a principle of customary international Jaw.

Let us consider the position of an independent New Guinea in 5 or 15 years time with an unbroken continental shelf stretching between Australia and New Guinea. Who will argue on behalf of Queensland, when Queensland has no international personality, if New Guinea says: 'We are not going to .subscribe lo any form of international arrangement that places upon us the obligation lo respect and adhere to the equidistant principle'? That principle is enshrined in the present law of the sea - the code of the last Geneva Convention.

This is one other significant problem. But how is Australia, in conscience name, to plead its position, to seek concessions and to maintain attitudes if in respect of its own sovereignty it has not made clear where sovereignty lies?

I do not know what has happened to the Liberal tradition. I always thought that it was based firmly upon the principle that in order to determine the value, the acceptance or the truth of any proposition, it was argued. Prior to 1961 the Australian States had the power to deal with legitimation. In the Marriage Act of 1962, I think il was. there were 2 provisions - sections 89 and 90 - relating to legitimation. I did not hear any person then cry out: 'Here is centralism. You are taking something from the States ! What happened? The Victorian Attorney-General sought to have certain declarations made, the Commonwealth Government demurred and argument ensued. If honourable members read the judgment of the then Chief Justice, Sir Owen Dixon, they will find that his opening words were: This has been brought to settle rights and to determine henceforth as to where these matters lie.' There is no doubt that there is argument as to where sovereignty lies. I believe it l:es with the Commonwealth. This has its origin in 1876 when a German ship, the 'Franconia'. within 3 miles of the port of Dover collided with an English steamer, the 'Strathclvde'. and the German captain. named Keyn, was indicted for manslaughter. Fourteen judges of the Court of Crown Cases Reserve sat to hear whether or not there was jurisdiction. One judge died before the judgment was handed down but the majority of the 13 held that the realm of England finished at the low water mark.

Keyn's case is not a binding authority on Australia but anyone who is game enough to argue that the States have sovereignty has a substantial obstacle in his path. Why not settle this matter once and for all? Young commanders and lieutenantcommanders are asked to go out on patrol boats and they have thrust upon them the responsibility of deciding whether or not a vessel is in Australian waters. May 1 give an illustration of the dilemma that can arise with respect to this problem? In 1962 a British trawler, rejoicing in the name, picturesquely enough, of the 'Red

Crusader', was alleged to have been within Danish territorial waters. The captain of the 'Red Crusader' was a man of wit named Wood. A Danish patrol boat, the Niels Ebbesen', gave the signal to halt to the 'Red Crusader'. Skipper Wood took no notice of it. The Danish patrol boat opened fire at the radar signal. The 'Red Crusader' stopped and the Danish patrol boat put a boarding party on board. Skipper Wood, to show his wit, locked the boarding party up and proceeded to sail off towards a home port.' This rather dumbfounded the Danes on board the Niels Ebbesen'. A British destroyer, the 'Troubridge', came into sight and came between the 2 vessels. This matter went to arbitration after there had been most angry notes exchanged between the two countries. One of the main matters for argument was whether or not the 'Red Crusader' was, in fact, within Danish waters.

In the matter we are considering there is a territorial strip of water, high seas, and this speckled jurisdiction throughout the length and breadth of Australia. I do not know why there is this reluctance to determine this matter. Of course this side of the House has passed through what I would describe as the minor contretempts of March or April of this year. However, we can survive and we will survive through this outburst of trouble. But this is a matter that should be referred. Within the space of the next 10 or 15 years there will probably be more submersibles operating underneath the water than there are submarines held in charge by the nations of the world. Today more than 1,000 cor.portations and companies throughout the world are building various devices associated with the exploitation of the sea bed. The world is now being thrust onto a completely new frontier. The mineral potential of the Pacific Ocean alone is quite extraordinary. To illustrate this fact, it has been estimated that there is sufficient nickel in the Pacific Ocean to meet world requirements for 150,000 years. Lest that means nothing I point out that at the present rate of use the nickel potential on land is of the order of 100 years.

May I remind the House what happened in 1970? The Navigation Act was amended as it related to pollution. If honourable members examine the definition of coastal

Australian waters in that Act they will see that it takes in from the low water mark outwards. I sat here while that legislation passed through this House and I laughed my head off - I know not sufficiently thoroughly enough for some people. But there is was. I did not hear any honourable member say: 'You are assuming sovereignty with respect to the territorial sea. You are taking something away from the States.' I heard nothing at all from the holy Joes - the State righters. This is a matter that must be settled. I even heard some State Minister say that if the Commonwealth had sovereignty with respect to the territorial sea and the continental shelf it would be able to control lifesavers and bikinis. Really and truly, one would not think that any person would have such a quaint approach to such a significant problem.

I understand from my friend, the Minister for National Development (Mr Swartz) that the final report of the Senate Select Committee on Off-Shore Petroleum Resources will be brought down tomorrow. I believe that it is with the Government Printer now. I further believe that the Government has some view that once that report is received it will proceed with it. But I ask my honourable friend whether he will do me the favour - I do not ask many favours of many people in this world - of nodding his head to indicate that the Government will proceed with this matter as soon as possible. I put it to the Leader of the Opposition (Mr Whitlam) that in order to carry his motion he must have the support of an absolute majority of members of this House. I do not know whether I can cajole, threaten, persuade, encourage, lead or mislead 5 or 6 members to cross the floor of the House to vote with him. That move is not on the board, but I want my friend, the Minister tor National Development, to give an undertaking that this matter will be proceeded with because it will probably take the whole of next year for it to be litigated, to be argued and for the judgments to be handed down.

I do not know why it is that the Government has persisted in being so inactive in this matter. I think there is considerable virtue in having the issue settled. Why should people be uncertain with respect to this great issue? I hope that my honourable friend finds it convenient to put himself in a position where he can give a broad indication that my suggestion is agreeable to him. If that be the case I will be prepared to sit in my seat when the motion is put.







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