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Wednesday, 24 October 1973
Page: 1445

Senator GREENWOOD (Victoria) - I rise at this hour to debate a Bill which has been on the notice paper of the Senate for quite a considerable time. I understand that it is not proposed to proceed with this Bill tomorrow. I make the comment at the outset that it is a curious form of management, if that is the appropriate word, of the affairs of the Senate that I should be put in this position to begin a speech on a Bill which has languished for so long and which presumably will languish hereafter for another length of time so that I will be part heard when the motion for the adjournment is put at 1 1 o'clock. I mention those facts only because I think the anomalous character and curiosity of them must strike home to every Government senator and give some credence to the Opposition's claim that we have a curious and totally unsatisfactory form of running the Senate. In this chamber the way in which the Government runs things is comparable to the way it is endeavouring to run this country.

The Bill to which I am addressing myself is the Seas and Submerged Lands Bill 1973 (No. 2) in respect of which the Government claims 2 objectives. It is claimed by the Government that this Bill will remove any doubt about the exclusive right of the Commonwealth to sovereign control over the resources of the seabed off the coast of Australia and its territories. That is the first objective claim. What I have just stated is derived from the second reading speech of the Minister for Primary Industry (Senator Wriedt) in the Senate. The fact that this is totally different from what was claimed to be an objective of this Bill when it was introduced into the House of Representatives apparently escaped the attention of the Minister when he introduced the measure in the Senate. In the House of Representatives it was clearly recognised that there was a doubt as to where sovereignty lay in the off-shore waters and in respect of the air space over the offshore waters and the seabed underneath those waters.

It was stated that this Bill was the vehicle by which the issue could be raised in the courts, and on the challenge being raised, a clarification given by the courts. But the attitude has now changed apparently and the Government now claims that this measure removes all doubts. I simply say that it does no such thing. The second objective claimed for the Bill is that it will provide a legislative framework, a mining code and a regime under which there can be reconnaissance authorities, exploration permits and production licences in respect of minerals which may be found under the seabed in these off-shore areas. It is unquestionably an important Bill and its constitutional significance should not be underrated.

Let me at the outset indicate what the Opposition proposes to do. The Opposition's attitudeI speak on behalf of the Liberal Party Opposition- is that it will not oppose the second reading of this Bill. But during the debate at the Committee stage, assuming that the Bill passes the second reading stage, the Liberal Party Opposition will seek to delete Part III from the Bill. Part III is the provision which relates to the mining code. I do not propose at this stage to elaborate in detail the reasons why the Opposition will seek to delete Part III of the Bill. I think it is sufficient to say that the mining code which is contained in Part III embodies a scheme that a Senate committee which met over a considerable period in relation to the Petroleum (Submerged Lands) legislation has substantially criticised. It is a scheme which gives to the Minister in charge of the legislation enormously wide discretion which no parliament ought to give to any Minister where the powers are unqualified and not restricted by way of specific criteria as to the manner in which the discretion should be exercised.

While the Opposition will not oppose the second reading of the Bill it nevertheless regards the Government's introduction of this legislationindeed, its whole approach to this question of who controls or exercises sovereign rights over the off-shore areas- as authoritarian and dictatorial. There is no question- I do not believe that anyone can gainsay this-that State interests, State rights and State responsibilities are clearly involved. They are inherent in the matters which are raised by this legislation. I stress that there has been no co-operation and no attempt at cooperation by the Commonwealth Government with the State governments with regard to this legislation or the objectives of the Commonwealth Government. If one is to accept what the Premier of South Australia has stated publicly, the legislation is contrary to assurances which were given to him shortly after the Federal Government assumed office last December. But the fact that there is no attempt at co-operation is a matter which ought to cause concern to the Senate and which caused concern to the Opposition.

I think the Senate will recall that when a Bill identical to the Bill we are now discussing was before it in May, the Senate expressly deferred consideration of that legislation in order to provide an opportunity for the Government to consult with the State governments on the objectives set out in the legislation. The Government chose not to avail itself of that opportunity. Although it was proposed that the Bill which was adjourned would be an order of the day for the first day of sitting after the Parliament resumed last August, the Government has chosen not to bring that Bill and the associated Bills forward for debate. I referred to that when the Bill now under discussion was brought into the Senate about 3 or 4 weeks ago.

I mention those matters to emphasise that what is being done by the Government in this Bill represents a completely unilateral action. The Opposition would have preferred a course of co-operation to have been pursued. As I said, the consideration of earlier Bills which came into the Senate was expressly adjourned to enable that co-operation to take place. The opportunity was not taken. In this Bill the Government has asserted its sovereignty and imposed its own regime into these off-shore areas. But if the Government's assertion is wrongly founded the regime, the mining code and the system which it embodies will be in utter confusion. Rights which may be purported to be granted under the mining code inherent in this legislation, if it becomes law and afterwards is found to be invalid in some way, will lack any prior foundation. Expenditure committed or proposed by those who desire to explore and to exploit mineral rights in these offshore areas will be in jeopardy. The consequential effect in so many ways will be enormous.

The Opposition believes that Part HI should not be part of this legislation. To include it in the legislation is inconsistent with the express objectives of the Minister as stated in his second reading speech when he introduced the Bill. He said that this Bill represented an opportunity for those who challenged the Commonwealth's assertion of sovereignty to take the matter to the court and raise the issue for the court to determine whether the Commonwealth's assertion was soundly based. I have addressed myself generally to Part III of the legislation. I turn to what is involved in Parts I and II of the Bill. The substantive section is Part II. It purports to deal with the vexing and long disputed question as to where ownership and control- sovereign rights, as the more erudite international lawyers have expounded it- lies with respect to the seas around Australia, the seabed beneath those seas and the air space above the seas. There is no doubt that a real question exists as to where the authority or where the sovereign rights actually lie.

Senator Wright - In which area?

Senator GREENWOOD - In regard both to the off-shore waters and the exercising of control throughout the extent of the off-shore waters to some distance of 200 metres or more depth. It exists with regard to the seabed beneath those waters to the extent of 200 metres depth, or further out, if the area can be exploited. In regard to the air space above those waters the question has been raised, and the extent of the real question in those areas is a matter which has not been much canvassed. But I mention those areas because they are the areas to which the Bill refers and about which the Commonwealth is asserting Commonwealth rights.

Senator Wright - I do not mean to interrupt you, but I would have thought that on the area beyond the 3 -mile limit there was scarcely any question.

Senator GREENWOOD - I appreciate the point which Senator Wright makes. With all respect to him, I believe that there is a question, although I concede that generally opinion holds to the view that that is part of the high seas or alternatively part of the continental shelf area, in respect of which considerations different from those which relate to the territorial seas must be examined before the necessary answer can be arrived at.

This question as to where authority lies first emerged as a crucial issue in this country in the early 1960s. It was at a time when exploration had suggested to some companies, in particular Broken Hill Pty Co. Ltd, as I recollect it, that there was a real prospect of oil discoveries being made in the seabed off parts of the Australian coast. The question arose because companies such as BHP which were prepared to expand moneys in exploration desired to have a security of title so that if they were successful in their quest they would be entitled, without question, to reap the benefits of their discoveries. But the real question lay as to whether they must apply to the State in order to secure from the State Government adjacent to the seabed in respect of which they were searching, the appropriate authorities to explore and if they got an authority to explore to have the exclusive rights of exploration, and if they discovered oil to have the exclusive rights of exploitation in that area. Or did they apply to the Commonwealth Government for those rights? It was a question upon which no one could give a ready answer. I believe that the basic reason why that answer could not be given was that the question had never been a matter of concern until the type of situation in which the question was posed arose.

The case which could be made for the States was a very significant case, as it appeared in 1 962. The States had long exercised an authority in the off-shore waters because they claimed that things which happened in those waters had an affinity, a connection, with the laws which had been passed by the States and on the lawyers doctrine of extra-territoriality, they had a right to exercise jurisdiction in those areas. The precise limits of that jurisdiction, its extent and the matters which it would cover involved further questions. But the Commonwealth Government was also a claimant, and entitled to be a claimant, to exercise authority in that area. The Commonwealth was a claimant because it has, in respect of the nation, which is Australia, the sole, the effective power to act on behalf of Australia in its external relations. The Commonwealth Constitution gave the Commonwealth the power over external affairs. Because there had been an international convention in 1958 which had declared that sovereign rights over the continental shelf area around Australia were vested in the coastal state which was, in the international community, the nation of Australia, within the domestic community the Australian Government claimed the right to exercise, through the Commonwealth Parliament, legislative authority over the offshore areas. It was a significant claim.

In the absence of any decision by that authority which, under the Australian Constitution, has the exclusive right to determine vexing and disputed questions of constitutional law, namely the High Court, it was very difficult to determine which of the 2 authorities had the appropriate jurisdiction. Because these matters were aired at length and in depth before the Senate Select Committee on Off-shore Petroleum Resources by many gentlemen well versed in the law, I recall that the case for the Commonwealth was regarded as a sound case from low-water mark as far out as there was an ability to exploit the seabed areas. But notwithstanding that that sound case existed, the Commonwealth case, as viewed in 1962, was stronger from the 3-mile limit of the territorial seas out to the extremities of the continental shelf and not so strong in the area between low-water mark and the territorial seas limit. On the other hand, the States- and all the States seemed to adhere to the one viewrecognise that their claim to exercise jurisdiction could be more strongly based in the area from low-water to the 3-mile limit and could be less strongly sustained in the area from the 3-mile limit to an area further out.

The significant result of this disputation and the acknowledgment that there was a question on which there was no ready resolution was the fact that, by co-operation and consultation, agreement was arrived at under which, for the purposes of petroleum exploration and exploitation, the whole of the off-shore area came under what could effectively be called joint control. It is a curious form of joint control. It was embodied in the petroleum submerged lands legislation which passed through this Parliament and which, in identical form, passed through each of the State parliaments. It was an epic achievement in co-operative federalism, the like of which had not been seen before and, I suspect, will never be seen again because it probably represented a pinnacle in what co-operation could achieve. It represented the results of cooperation and a concession by the States and the Commonwealth, because the whole of the offshore seabed from low-water mark to the extent to which you could actually explore and exploit was under the control of an authority, which was the State authority. Nevertheless, that State authority agreed, by an agreement entered into by the then Prime Minister and the Premiers, that he would acknowledge the superior authority of the relevant Commonwealth Ministers in the specified areas of Commonwealth interest. I say that it is unlikely that that type of scheme will ever again be presented in this country because the Committee which the Senate appointed, virtually as the condition upon which the legislation passed through the Senate, reported that there were some aspects of constitutional responsibilities in which the legislation was deficient. I do not embark upon a discussion of the aspects in relation to which the Committee made that conclusion. I simply relate that fact because it ought to be recognised by those who contemplate that that scheme might possibly be used for other purposes.

I think the Senate is conscious of the constitutional responsibilities within the concept of ministerial responsibility, and I believe that it would regard that matter as a fundamental matter of importance if legislation of that character was brought forward again. But the position remains that there is still an uncertainty with regard to a host of matters which are not covered by the petroleum submerged lands legislation. As I understand the position, it is to clarify the doubts which exist with regard to those matters that this Bill is introduced. I feel that it is appropriate to elaborate those matters by referring to the report of the Senate Select Committee on Offshore Petroleum Resources, which I propose to do.

Consideration interrupted.

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