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Tuesday, 27 November 1973
Page: 2143

Senator WEBSTER (Victoria) -The Senate is debating the Seas and Submerged Lands Bill 1973. Basically in the Bill the Australian Government is attempting to declare its sole rights to control the seas and submerged lands surrounding Australia. I believe that the matter is of importance and that it has progressively developed in importance over the past 20 years. This Bill is an attempt by the Australian Government not only to remove the present doubt as the right of the States or the Federal Government to control ofT-shore areas but also to gather to the Australian central Government the right of direction of the use, exploration and exploitation of the sea, its resources and the submerged lands thereunder. Control of the air space above those seas is also envisaged by this legislation. As a representative of Victoria in the Senate I am not encouraged to the view that the demands of the centralist Government should override the possible rights of a State.

Senator Cant - The honourable senator agreed with the report.

Senator WEBSTER - I shall answer Senator Cant so that his comment will appear in Hansard. I wish that his laughter could be recorded also because it is generally consistent with his approach to most matters.

Senator McLaren - The honourable senator is not denying what Senator Cant said, is he?

Senator WEBSTER - I am denying what Senator Cant said. I believe that the former legislation which was put through by this Federal Government- that is the Petroleum (Submerged Lands) Act and associated measures- is the type of legislation which should be held to in the federation of Australia. In most respects that legislation has served this country well. It was rightly described as the initiation of a piece of cooperative federalism as we, on the committee which looked into that legislation, all learnt. The question of jurisdiction of ownership of off-shore areas is in doubt. I believe that the control of those areas is best undertaken in a manner similar to that undertaken in the Petroleum (Submerged Lands) Act. The right to control those areas should be a co-operative matter, the States having equal and full right as has the central Australian Government. Internationally the control of the seas and submerged lands rests with the adjacent state. If one, in looking at the Bill, refers to Schedule No. 1, the Convention on the Territorial Sea and the Contiguous Zone, to Schedule No. 1, Pan II relating to the contiguous zone and to Schedule No. 2, the Convention on the Continental Shelf which are appended to the Bill, one can see that the adjacent state internationally is considered to be the Australian central Government.

There has been considerable debate in the United Nations on this matter. There has been pressure in the United Nations that the resources of the submerged lands should be shared and used to assist less developed countries. A large vote of the United Nations is attracted to this proposal. It is my belief that the type of government which is in power in Australia at the present time will eventually give to the control of the United Nations the benefits to be had from the exploitation of the submerged lands surrounding this nation. There is security for Australia in rejecting this Bill. It will put the centralist Government in complete control and make the States subservient to that Government. This is legislation which points up the extremely important and interesting aspect of both international and constitutional law and, further, the evaluation of the commercial interests which may rest in the community. Many of the problems were set out following the report of the Senate Select Committee on Off-shore Petroleum Resources. I would recommend a reading of that report of 780 pages as being of extreme importance in this matter. In all that the report covers and in the conclusions which the Committee reached following several years of fairly intense inquiry, there is nothing more important for evaluation than the recommendation which is to be found on page 7 and which I will quote. In the summary of conclusions and recommendations is the point on which Senator Cant commented. He was suggesting that this report recommended that the Commonwealth do as it is doing and declare its right- which is, of course, not the correct position set out in that report. In fact, when referring to the constitutional conception underlying the proposed legislation the report states at page 7:

That, notwithstanding the advantages to the national interest which the 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.

That in itself does not mean that there should be a wholesale takeover by the Australian Government; nor is such action appropriate at this time. In many areas the present Government has moved very quickly to assert a central government control and direction of the various States. It is, in fact a determination as between the authority of the States and that of the Australian Government to which this Bill refers.

Recently the Prime Minister (Mr Whitlam) announced his intention to work towards the elimination of States and towards central government control through regions of the present Government's choosing. In many areas in the past 10 months of the Labor Party's rule one can see that were this rule to continue- undoubtedly it will continue for some little time- there would be an enormous threat to the autonomy of the States. This Bill is one of the early declarations of the Australian Government's proposed strength. I do not deny that the Gorton Government proposed that this should take place; but many in the Senate objected to that proposal. One can see the Australian Government, in the present legislation and in so many areas of legislation, continuing to erode the strength of the States. One can see that from the debates that we have had recently on education. One can see it in proposals for the prices and incomes referendums which are to be held on 8 December. Here we have a proposition that control of prices should be vested entirely in the Australian Government. It is very interesting to note the way that this has come about and the attraction that a 'yes' vote must have for people at a time of great inflation; that if something can be done to eliminate price increases, then perhaps this power should be handed to the Federal Government.

As well there it to be a referendum on the proposal that power over incomes be granted to the Federal Government. Here is a pea and thimble trick, if ever I saw one perpetrated by a government. You, Mr Acting Deputy President, will recall that the Government gave this Senate exactly 1 5 minutes- that was less than the time given to the Leader of the Opposition (Senator Withers) to debate the prices proposal- for total debate on this matter in the Senate. I believe that it will ever stand to the discredit of the Labor Government in its seeking for free discussion in Parliament that that matter- the proposal for control over all incomes and prices to be given to the Federal Government- was dealt with in that way. Of course, something that has not been emphasised to the people is that the giving of control over prices to this Federal Government not only means control over the commercial activities of companies or individuals but also hits at the very heart of control of all the prices and charges that would be levied by any State. The people will hand to the Australian Government a power to control every aspect of commercial life which flows from any State. Of course, it follows that it is control by the Federal Government over everything relating to charges by municipalities and statutory authorities.

The only conclusion I can draw on that matter is that it is the desire and policy of Labor that it should have permanent and undoubted control over all these areas. I see it in the basis of the referendums proposed for next year; and, again, if one refers to the unfairness of what Labor is proposing, one must say that one of the Bills that we have before us concerning the referendums proposed for next May refers to a question that will be asked relating to democratic government.

Senator McLaren - What has that to do with it?

The ACTING DEPUTY PRESIDENT (Senator Lawrie)- Order! I think Senator Webster, you should come back to the Bill.

Senator WEBSTER - There is a very close connection between this Bill and the points I am making and I am sure that you, Mr Acting Deputy President, will see it when I explain it. to you. I commenced my speech by indicating that we see here the basis of a declaration by the central Australian Government as to its right, a right which I believe originally existed in the States. I am now attempting to point out that this is an act which is consistent with many other things which the Labor Government has done during the past 10 months of office; and I was attempting to indicate to you, Mr Acting Deputy President, what it has projected in relation to referendum items. I commenced with those for 8 Decemberand I am sure that you would not wish me to repeat them - (Government senators interjecting)-

Senator WEBSTER - I then spoke of the referendums which are proposed for next May and which again seek to declare this central Government's power over matters that are at present under State control. I am sure that because of all the noise that emanates from some Labor members you, Mr Acting Deputy President, would not suggest that I be called to order, when the great importance of what I am pointing out obviously is being made known to the Government senators at this time and they are objecting to what is taking place. It is very important to see in this Bill not only the erosion of the power of the States but also the erosion of the future of the Senate by what the Federal Labor Government intends to do to gain complete power for itself. The core of the debate is the preservation of the rights of the several States.

Senator O'Byrne - Which are they?

Senator WEBSTER - I speak in their protection. I speak to uphold the obvious right to the off-shore areas which they presently supervise. The Senate report notes concisely the right which the State representatives believed they had. The honourable senator who just interjected was a very strong party to this report. It is very important that some of the attitudes of the States be made known. I think that the Senate would agree with me generally that the States, when they put forward their view in relation to the Petroleum (Submerged Lands) Act, certainly at no time conceded that the Commonwealth Government had a right over the territorial sea or the sea out to the continental shelf. There was argument about who controlled it, and this is something which has not been determined. There was general agreement, far from going to litigation in relation to this matter- something which had been a matter of great contention among all federations- between the Commonwealth and the States on these particularly important areas of jurisdiction.

Page 102 of the report of the Committee deals with the submission by the States. It refers in part to this matter. At that point the Committee was looking at a term of reference which related to the constitutional conception underlying the legislation to which we had given our attention.

Dealing with the submission of the States, the report states:

The answer to this term of reference depends basically upon what is meant by the proper constitutional responsibilities of the Commonwealth and the States. To some extent, what is proper depends upon purely subjective considerations, i.e., whether one is a centralist or whether one believes that federalism is a desirable structure and can and should be made to work satisfactorily. If one is a centralist then presumably one would believe that the Commonwealth should, upon every occasion and in every circumstance, exercise its powers in the full irrespective of whether such an exercise would lead to duplication of administrative authorities and disharmony between the Commonwealth and the States. On the other hand, if one is a federalist one would be conceding in each case an exercise of power both by the Commonwealth and the States which would avoid unnecessary duplication of governmental administration, provided that the national interest was properly safeguarded.

It is submitted that the question cannot, and should not, be approached from the standpoint of whether the Commonwealth and the States have exercised their powers to the fullest extent. To approach the question in this way would be tacitly to treat as inevitable and not undesirable the very constitutional battles that it was the wish of the Commonwealth and the States to avoid.

The States, while recognising that an argument existed, in their own interests submitted that a federal system should be left to work. I refer to page 104 of the report, which deals with the evidence given by Sir Kenneth Bailey who was then then Special Adviser in International Law to the Commonwealth Attorney-General's Department. He expressed his view on that constitutional concept. If there is an argument based on a constitutional fight which may follow if this Bill is passed, I believe that one should look to the view expressed by Mr Good, Q.C., who was Solicitor-General of Western Australia. He argued, I believe, that Western Australia and Queensland particularly had a greater right to the submerged lands than the Commonwealth had. In his view, there was some argument as to the right in relation to New South Wales, Victoria and South Australia, perhaps Tasmania. He was not conclusive in his view that those States had not as much right as the Commonwealth had, but there was little doubt in his view that the original States- Western Australia and Queensland- had greater right than the Commonwealth had. I quote from page 119 of the report. Mr Good told the Committee:

We feel that legally we probably have the right to control beyond the territorial sea. I might start off and tell you of the position as it existed before federation. We were given, by the British Parliament, the power to make laws for the peace, order and good government of Western Australia and its dependencies within certain parallels of latitude and longitude. This area included a large number of islands and went hundreds of miles out to sea. We think that there was implicit in that grant of power that we must have power to make ports, harbours and the like because that was the only means of access. We had power, therefore, to build breakwaters, groynes and the like . . . We feel that within the areas mentioned in the

Letters Patent, the last one of October 1900 which defines the area or our responsibility, and subject to international law, certain provisions of English law such as the Colonial Laws Validity Act and the Merchant Shipping Act, subject to treaties and subject to reservations of bills under the Instructions to the Governor or under the Letters Patent, we had all the powers and authority of the British Parliament in relation to this area.

There can be little doubt that Western Australia had every reason for claiming that it had equal right in relation to any off-shore area about which the Commonwealth may challenge it. At page 1 18 of the report the Committee deals with the evidence given by Mr Wells, Q.C., who was the Crown Solicitor of South Australia. I will not read what he said, but his general comment was that the various Acts of Parliament of the United Kingdom passed during the nineteenth century gave each State the power to make laws for the peace, welfare and good government of the State. He said that that meant that each State could effectively make a law on any matter which relates to its peace, welfare and good government, provided it does not relate to a subject with respect to which the Commonwealth has exclusive power and it is not inconsistent with a valid law of the Commonwealth. In short, those States believed that there was a nexus between the power which they held in relation to their own State and the adjacent areas. I also refer the Senate to the contribution which Senator Lawrie made to this debate. He pointed out the very secure position that Queensland had in this matter.

I take it that there is no right for members of the Senate, which is a States House, to come to a ready agreement that there should be placed in the hands of the Commonwealth a complete right over the States in relation to this matter. At page 123 of the report the Committee refers to the evidence that was given by Mr Finemore of Victoria. That State was alert to the problems relating to the rights to off-shore mineral areas and was the first State to pass legislation which gave to the State Government the right to grant licences for commercial activity off its shores. Victoria certainly acted before the Commonwealth decided to get off its tail and do anything in relation to the matter. The whole of the evidence given to our Committee certainly endorses the view that we as a Senate should not be granting this right to the Commonwealth.

The important aspect, of course, is that one imagines that this right may apply only to mining in the future, and there are the great prospects of mining for petroleum in the submerged lands and for tin, gold and the recovery of precious sands and other minerals. This is a matter which will be of importance in the future. It would be my view that this power would apply also to the normal harvesting of the growth that occurs on the seabed as well as the research activity and the generation of power, which is a matter which is becoming increasingly important at this time. Australia, and indeed the world, has given insufficient attention to the great possibilities of generating power by means of tidal movements around the Australian coast. All of these are matters of particular importance and they should be left to form part of the domestic activities of the States. They should not be the subject of a declaration by this Parliament that their control rests with the Australian Government. The control of shipping and the control of fishing rest with the States and I believe that that position should continue to apply.

In 1968 when the Committee to which I have referred the Senate was preparing its report I had the benefit of travelling overseas. I spent some time in America and Canada and I devoted a great deal of time to discussions with various oil companies. Indeed, I had the benefit of going down to the Santa Barbara channel. I flew over the area in which the great disgorge of oil occurred in the Santa Barbara channel, and I noted the problems in that regard. I was told at that time that what we are facing now had already occurred in America, namely, that the central Government of the United States had declared its right over various areas, although it had not declared its right over the territorial sea. The United States is facing a very awkward situation. It was explained to me that while the central Government has the right of control over the outer areas of the sea where it can grant permission to drill, when the drilling company wants to bring its pipeline on to the shore it has to obtain permission from the relevant State authorities. All sorts of problems are involved. Millions of dollars- I think the sum ran into 9 figures- were held in escrow because no one was able to decide who should have control over the lands containing minerals which had been bought over the years.

This same problem is the subject of a great argument between the Federal Government and the State governments. If this Bill succeeds and the Australian Government has the power to do everything that it wishes, will there not be an argument, even if the Commonwealth gives back to the States some of the rights in relation to offshore areas which undoubtedly it would not wish to control itself? If this legislation is passed there will be a great argument between the Australian Government and the State governments in relation to the headworks that may be required to be adjacent to the offshore areas and situated on firm land. There are problems overseas in relation to this matter. We are only introducing ourselves to the problems that exist overseas by attempting to follow what others have done. We have passed legislation in this Parliament on a co-operative federalist basis, and that legislation has proved of great value in the exploration for and exploitation of petroleum and other substances in relation to which we have legislated.

I would dislike it if this legislation were passed and we found it being challenged so that a prolonged legal argument ensued in the Australian courts as to who did have control over these particular areas. Eventually the decision of the court must be that certain of the Australian States have a complete right over the territorial sea and certain other States do not have such a complete right. Again the future will be very clouded by any decision of the High Court of this country. The Country Party will oppose the second reading of this Bill, and I hope to be one of those who will be seen as being opposed to this piece of legislation.

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