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Thursday, 17 May 1973
Page: 2316

Mr GORTON (Higgins) - In direct contradistinction to the previous speaker on this side of the House, my colleague the honourable member for New England (Mr Sinclair), I wish to make it perfectly clear that I support the Bill and have no intention whatsoever of voting for the amendment. I express support for the Bill and, if I may be permitted to say so, I feel great satisfaction that it appears that it will now pass this House of Parliament. It should have been passed 3 years ago and on other occasions since then. The national interest required it to be passed then, and the national interest will be served if it is passed now. Indeed, it is a little ironical to reflect that had it been passed previously, before it was introduced by the present Government, the States were assured and had been assured of even more generous royalty treatment than they are getting under the existing petroleum legislation. It now appears that they will not receive those benefits. But they have little more than themselves to blame if this turns out to be the fact.

I must make it clear that this Bill will not decide the question of whether the national Government or the State governments have legal sovereignty over the waters around our coast. It was always realised that a Bill of this kind could not decide that. But what the Bill does do, and why I support it, is that it opens the way for that question to be decided, and decided by the proper tribunal - the High Court of Australia. It ought to be decided. We are told that there ought to be conferences between the national Government and the State governments on this matter. There have been innumerable conferences on this matter between representatives of the national Government and the State government. They have been going on and on over a period of years. Despite what has been said in this chamber, I submit that no progress was made on the central question - the question of who in fact has sovereignty over Australia's seas at any of those conferences. From communiques issued to us, it appeared that the meetings reached no agreement except an agreement not to try to solve the central matter at all and not to try to put the question of sovereignty beyond doubt by the only method open to this Parliament - passing legislation making an assertion and allowing the body set up under the Constitution to determine the matter to determine the matter.

So, if we can judge on past evidence, there seems little point now in saying that action should be further delayed while there are more conferences, when in fact all the conference so far held on this central matter have been abortive. On the plain ground of common sense, they would continue to be abortive; they must continue to be abortive. How can one reach co-operative agreement with anybody on anything about what should be done in certain circumstances when one does not know what those circumstances are? How in the world can one hope in that way, when there are different vested interests, to reach some kind of a conclusion? The only way to do it is to find out what the circumstances are; and then by all means have discussions as to whether and how there should be or could be co-operative measures, but have them under a set of rules which are known, definite, final and finite. That is why I support the Bill as it is before us now.

I do not believe that, if this matter is resolved in this way - even if the resolution is supported by a judgment of the High Court, as I believe it will be - it will clear up all matters at stake. There will still be areas in which there will be legal questions in doubt, which have been adverted to by the honourable member for Parramatta (Mr N. H. Bowen) and other speakers with legal knowledge. But merely because it will not clear up all legal matters in doubt is surely no reason for not clearing up some of the basic legal matters in doubt - the basic legal matter in doubt. Then the others, of course, will tend to be cleared up later. I cannot understand the argument that, because this Bill does not settle everything, it should be rejected so that it settles nothing. I simply find that an impossible argument to accept. 1 believe, with others who have spoken here previously and in other parliaments, that it is not just a question of mining codes with which we are concerned, important as that may be. A mining code affects not only the minerals taken from the sea and the royalties charged on them but also the questions of what is done to the seabed when mining takes place, whether currents are altered, what happens to the ecology and what is changed. There needs to be one central authority to see that in some part of Australia, under a government of some part of Australia, action is not taken which damages that which belongs to all the people of Australia. For example, there is the question of whether drilling should or should not take place on the Barrier Reef, whether reefs should be mined for aggregate for cement - a whole variety of questions which are national matters however one looks at them.

The honourable member for New England adverted to pollution. He mentioned one instance where there were difficulties - I remember them well because I, too, was in office at that time - which ought not to have been difficulties, which were overcome and for which special action should not have had to be taken in order to overcome them. In a situation in which special action has to be taken to overcome some problem of that kind, it is always possible for the other party not to allow it to be overcome. This is not a situation in which Australian governments should be placed. The matters of control of fisheries and the conservation of fisheries, looked at in a proper way, are matters which in my view ought to be under the control of the national Parliament but which, I submit, in anybody's view call for a decision as to whether they are or are not under the control of the national Parliament.

What are the arguments that have been advanced against taking this step? I leave out of consideration some of the arguments advanced by some representatives of State governments because they boil down, in my view, to a simple statement that they do not want to have the matter resolved; they just do not want to find out what the position is. Other than those, various arguments have been put forward. All I can say is that to me they seem to have the venerable charm of antiquity and nothing else. One of the arguments put forward against the Bill is that it will not completely dispose of the matter. It will not. But it makes a start on disposing of it and it will dispose, one way or the other, of the central matter. I can only express a hope that if the High Court should not support the assertion of sovereignty in this Bill - I shudder to think of it - some government will go to the people and ask them at a referendum to give it that power.

It is said that the mining code in the Bill is not satisfactory. I express no opinion on that subject, but I point this out: If the main principle of the Bill is acceded to and upheld by the High Court, clearly any national government will have the authority to bring in a mining code. This is assuming that the High Court will uphold that principle; therefore suggesting that a mining code could be brought in under it. If the High Court does not uphold the principle, the mining code means nothing because the Parliament would not have the power to make it. If it does uphold the principle, a government with a majority in either House could bring in any rnining code it liked and then we could discuss the rights and wrongs of it. It has been suggested to us that perhaps there would be difficulties because the States might not provide the land facilities which would be necessary for off-shore mining. Although that argument is advanced in good faith I do not know whether it is expected that anybody would take any notice of it. Can anybody imagine a State government saying: 'You the Commonwealth, or you the mining company which the Commonwealth has licensed - say, Hamersley if there is a new Hamersley company - cannot use the land on the coast of our State, be it Western Australia or South Australia'. Surely nobody can really suggest that that would happen. I suppose one reason why it might not happen is that if any State government were ill-advised enough to try it - I am sure that they would not be - the Commonwealth in pursuit of a Commonwealth objective could acquire land under the Constitution and then use it. But this is an argument of which I think we need take no notice at all. We are told that in America and Canada the whole matter has not been cleared up. I do not think we have been given a full and accurate story on what has happened in the United States or in Canada in regard to these matters. We hear of a lot of money in escrow. I believe it is only in one part; I believe it is only in the Gulf of Florida. I believe there are other matters concerned with this which are not the central matters which we are discussing now.

Putting those arguments to one side, I have heard no other argument advanced as to why a national parliament in which every Party represented asserted that the national Parliament has authority over these water* - and every Party in this place asserts that - but which is challenged by State counter-claims should not take action to make that assertion a fact and test it in the proper way as is laid down in the Constitution. For my part, if we assert in the Liberal Party, as we do, that we have authority in the national Parliament over these waters, it seems pusillanimous not to test that assertion when it is in the national interest to do so.

As far as the amendment is concerned, I think I have indicated why I would not myself vote to support it. I am not of the opinion that consultations with the States for a cooperative regime should commence forthwith. I am of the opinion that this Bill should be passed and tested and that then there should be discussions with the States under circumstances which are then known and, where reasonable arrangements can be made, they should be made. But that would have to be, in its turn, a matter for discussion. I reiterate that I cannot see how the Government can have consultations in a given situation when it does not know what the situation is. That is why I support the Bill. That is why I do not propose to vote for the amendment. Before I sit down I want to reiterate what was said by a Senate select committee which perhaps puts more succinctly than I have the conclusions of the case. The Committee said:

The Committee considers that, notwithstanding the advantages to the national interest which the legislation-

That is, the mirror legislation - and its underlying conception has produced, the larger national interest is not served by leaving unresolved and uncertain the extent of State and Commonwealth authority in the territorial sea-bed and the Continental Shelf.

This Bill is aimed to ensure that the larger national interest is served by resolving the uncertain extent of State and Commonwealth authority. For that reason I support it. Indeed, if I may say so, it was for that reason that I introduced it at another time.

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