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Thursday, 17 May 1973
Page: 2328

Mr FAIRBAIRN (Farrer) - I find myself partly in agreement with the opening statement of the Minister for Minerals and Energy (Mr Connor) in his second-reading speech when he said that it would serve Aus tralia's national and international interests to have the legal position on jurisdiction resolved. I say partly because there never has been any doubt that the only government that can negotiate internationally on behalf of any part of Australia's maritime shelf is the Federal Government. The problem is: How can this question of jurisdiction be resolved? There seem to me to be 2 alternatives; firstly, for the Federal Government to legislate and challenge the States to litigate, or, secondly, to try to negotiate an agreement with the States, and then to put the agreement into legislation.

The second method was successfully used in the off-shore petroleum legislation. It has been of enormous benefit to Australia. The States made no secret of the fact that they would have liked to see the same principle used in off-shore mining legislation. The previous Government did, of course, try to obtain agreement with the States but was unable to do so before it went out of office. The present Government is using the first method, but I do not think the Government could have really studied the consequences that must flow from this legislation. I propose to examine a few of those consequences.

The effect of this legislation must be to incite permanent litigation extending over, perhaps, 2 or 3 decades before Federal and State boundaries are finally resolved. If held to be constitutionally sound, this legislation must inevitably undermine the off-shore petroleum legislation, and the Minister in his second reading speech has twice used the ominous phrase 'off-shore petroleum arrangements will continue for the present time'. Administratively, this legislation must also produce confusion. The Commonwealth has no Mines Department except in the Northern Territory to administer and police laws for mining off-shore, nor could it police laws for fishing, boating, swimming, marine parks, criminal law and other matters. Yet the Commonwealth will have the ultimate responsibility in these matters if this Bill becomes law and the High Court upholds its validity.

This legislation is nuclear in many areas. It is doing enormous damage to CommonwealthState relations. The friendly relations and goodwill which I did my best to build up over more than 5 years are going. To replace all these minuses, what does the Commonwealth seek to gain? The only purpose, apparently, is to resolve an abstract question of power as to whether the Commonwealth Parliament or the State Parliaments have the power and authority. Surely the sensible answer is for co-operation and joint action in which neither the States nor the Commonwealth contests one another's constitutional jurisdiction and in which joint arrangements on administration and sharing of returns are made on a mutually satisfactory basis. All this enormous damage to Commonwealth-State relations is so completely unnecessary because virtually no off-shore mining is now occurring, and it is not likely to occur in any major proportions for the next decade.

The Minister in his second reading speech places his reliance for Commonwealth authority on an obiter dicta made by the Chief Justice in the case of Bonser v. La Macchia - a case in which jurisdiction was not argued and in which the Commonwealth and State AttorneysGeneral specifically asked that no decision on Commonwealth-State sovereignty be made. I would like to quote the remarks of a legal authority who, while he may be no more eminent than the Chief Justice, is cer- tainly no less so. This person .said:

In the Australian federal system, it is I think, clear that off-shore control is exercisable in accordance with the constitutional division of powers between the Commonwealth and States, the territorial sea being for this purpose treated as part of the territory of the State concerned. Accordingly, the control of the oil resources of the sea-bed beneath the territorial sea would normally appear to fall wholly within State authority, subject of course to such Commonwealth powers as those with respect to defence. But in this field as in all others, it is the Commonwealth and not a State which is internationally responsible for any exercise of power, whether by the Commonwealth or by a State, which affects other countries or their nationals.

Those were the words of the then member for Parramatta and Attorney-General in 1962, Sir Garfield Barwick. Some people have claimed that Australia is the only nation which does not know what the legal position is and where sovereignty lies. This statement is simply not true. The following countries are some of the federations with divisions of power between the State and Federal authorities similar to Australia: The United States of America, Canada, the Federal Republic of Germany, Malaysia and Nigeria. Do these federations know the legal position of their off-shore resources? If the United States knows, why did the courts in the United States hold up to an amount of $1,3 65m in escrow because their courts could not decide whether this amount, which comes from 13369/73- -R- pi} royalties, was owned by the State or the Federal Government? I stress 'did', because there has been some improvement lately.

If everything is such plain sailing in the United States since the 1947 decision, why was it necessary to appoint recently a special master and to place in his hands the unresolved question regarding areas subject to Federal Government or State jurisdiction in the State of Louisiana? It is good to know that, since the 1956 Agreement between Louisiana and the United States - and I stress that it was an agreement, not a court decision - dual permits or dual royalty payments have no longer been required. However, the question of the duplicate payments made prior to that time has not yet been resolved even though Louisiana and the United States are holding some payments that are clearly from each other's area. Why are a number of cases still pending in the American courts if the legal position is understood there? If everything is so clearly understood in Canada, why are negotiations still proceeding between the Provinces and the Federal Government 6 years after the decision of the Supreme Court of Canada in a case which only applied, of course, to the Province of British Columbia? Why is this decision, in the words of a previous information officer of the Canadian High Commission in Canberra, generally considered as affecting just one round of a fairly lengthy match? If the situation is so clear in Malaysia, why was the Malaysian Government studying the Australian off-shore petroleum legislation, just as the Canadian Government did after the Canadian Supreme Court decision when it sent Mr Isbister, the Secretary of its Department of National Development, to Australia?

Perhaps there are some people naive enough to think that all that is needed is a decision by our High Court and we then all live happily ever after. Every experience available shows that this would not be so. If honourable members desire to see constant litigation over a decade or more, they should pass this legislation. It should keep the lawyers fat and prosperous for many years to come. Some honourable members may ask why this is so. It will come basically from attempts to delineate State boundaries and therefore State sovereignty. Some basic rules for delineating boundaries have been laid down, but there are so many 'ifs' and 'buts' that there is enormous scope for legal disagreement. Let me mention a few of the problems to support my contention. At the present moment, State boundaries are determined by closing off harbours by a closing line drawn across the natural entrance points. Under the 1958 Convention on the Territorial Sea, if such a closure is less than 24 miles all waters inside this line are internal waters and therefore under the jurisdiction of the State. Of course they are shown on Commonwealth maps already as being under the jurisdiction of the State. This Bill, however, makes State boundaries revert to their boundaries as at Federation. Some authorities believe the closure distance at Federation was 10 miles and some believe it was 6 miles. Who is right? This will have to be decided by the Court if this legislation is held to be valid.

Then we come to the drawing of baselines with regard to islands and low-tide elevations. Next comes the problem of enclaves and nonadjacent archipelagos. Of course, where the baseline method is applied to a coastline which is surrounded by a number of islands, but not a sufficient number to warrant this method, the drawing of areas of territorial sea round each island will lead to small pockets of high seas surrounded by territorial waters. One opinion has been expressed that such enclaves; as they are called, if not more than 2 miles in breadth and entirely surrounded by territorial waters, may be included within the territorial waters, but, in the case where the waters are open at both ends the pockets should be regarded as part of the high seas. We should not forget that there are islands which are not so close to the coastline as to exhibit an affinity with it, yet are so interconnected with each other as to suggest the application of the joining line of more than 6 miles, which would be the width of an island joining line if measured in the ordinary manner. I am sure that this shows the House that there are obvious grounds for disagreement in so many of these decisions. At a conference on this problem some delegates favoured the ordinary 3-mile line principle while others favoured treating the group as a whole, on condition that the distance between islands did not exceed 10 miles.

Then we come to the treatment of low-tide elevations and complex areas of coastline consisting of deep indentations and fringeing islands. There is the problem of the so-called historic bays, where the depth of penetration must be at least equal to the radius of an area marked out by a semi-circle, the diameter of which is based on the distance between the entrance points. Sometimes bay is the term applied to indentations of the coastline wider than the depth of penetration, while a gulf is characterised by deeper penetration. Along the Australian cost some so-called bays are not bays at all. There is said to be a great deal of confusion in the Australian position in bays.

Article 7, paragraph 3, of the Convention on the Territorial Sea concerns islands along the mouths of and within bays. One writer has described this provision as being so difficult to apply in practice that it is impossible to appreciate either its value or its purpose. And so one could go on. If there is not enough to keep the High Court going for years, then I am a Dutchman - and 'Fairbairn' is, as I am sure even the Minister realises, a name of entirely Scottish origin. So far, I have, not touched on baselines drawn for economic interests. What of low tide elevations with and without lighthouses permanently above sea level? What of rocks awash? What is the legal requirement for the existence of an island? What about uninhabited cays, rock outcrops -and boulders above high tide? Do these have territorial water surrounding them? Are drying rocks and drying shoals points of departure for. measuring territorial . waters? What heights of tides are used? Are they normal tides or neaps? I could go on much longer; but I think I have said sufficient to suggest that the title of this Bill ought to be changed to 'A Bill to provide lawyers with large incomes for many years to come'.

These problems were avoided in the off-shore petroleum arrangements between the States and the Commonwealth because ' common sense, agreement and co-operation were used in achieving the solution. Not only has there been no agreement or co-operation in this legislation; common sense also has been a casualty. When I was in the United States 6 years ago, a commissioner of the Federal Power Commission told me that he did not expect to see the end of litigation on the United States' off-shore areas during his lifetime. When we agreed on the joint Commonwealth-State offshore legislation on petroleum I hoped that Australia was capable of learning from the United States' mistakes. Apparently I was over-optimistic. I certainly shall be proved over-optimistic if this Bill becomes law.

Litigation also can arise from the attempt to determine jurisdiction. What happens, for example, where a person in the water uses obscene or offensive language to a person on the shore? Should State law apply or should Commonwealth law apply? What happens when a surfer strikes a swimmer with his board? Someone will have to determine whether the accident occurred above or below low water mark so as to determine jurisdiction. Coal miners in the Bulli coal fields, for example, will pass to and from Commonwealth jurisdiction as they cross vertically the low water mark. I said earlier that this Bill does not do what the Minister's second reading speech claims that it does. This is not my opinion; it is the opinion of eminent legal authorities from the States. How, they point out, can one exclude from Commonwealth jurisdiction structures built on Commonwealth land? Surely any wharf or jetty automatically becomes Commonwealth property if it is built on Commonwealth land, just as, for example, if I own a block of land and someone puts a structure on it, it becomes my property. Thus, the Commonwealth would acquire not only all these structures but also any areas built up by the States since Federation - for example, Port Kembla, Portland, Warrnambool and Port Latta. Certainly a number of more open harbours, such as Barrow Island, which are now administered by the States will become Commonwealth property.

This legislation also ignores the fact that, in the proper development and control of offshore areas, joint co-operative action is required by both the Commonwealth and the States in the legislative and administrative spheres. Even if a State did not have any power below low water mark it still would have to play a major part in the development of any off-shore mining venture as it would have to provide so many on-shore facilities such as housing, roads, schools and police stations, lt could, I suppose, exercise the ultimate sanction of preventing the development of an off-shore mine merely by preventing a mine from landing its ore in the State concerned. The Commonwealth, of course, has supreme power in the off-shore areas in relation to the execution of any of its functions, just as it has on the on-shore areas. What it is seeking to do here is to extend its powers to the complete exclusion of the States.

I hope that, even at this late hour, it may be possible to withdraw this Bill and try to repair some of the damage that has been done. What is needed, surely, is not a decision by a majority of the High Court judges as to where they believe jurisdiction lies at present. What is needed is a common sense arrangement, thrashed out with the States, as to what they and we would like to see. Then we can set about implementing this decision by legislation in this and, if necessary, all parliaments.

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