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Wednesday, 11 December 1974
Page: 3388

Mr ACTING DEPUTY PRESIDENT (Senator Marriott) - Is leave granted? There being no objection, it is so ordered.

Senator CARRICK - May I say at the outset that the subject matter inherent in these 2 Bills, that is the need to conserve and protect the flora and fauna and to maintain the balance or the interaction between flora and fauna, including interaction with man, is, of course, one of the most profoundly important challenges to man today. I say this in the knowledge that one of the most gratifying things in recent years has been that not only the scientists and the politicians, but also as pace setters for the rest of the world, the people of Australia have come to demand that everything possible be done to preserve the ecosystem. In that the Federal Opposition fully concurs. Indeed, governments of Liberal and Country Party faith at the State level throughout Australia have set a very significant and forward pace in such legislation.

If I do not dwell upon the philosophy inherent in these measures it is not because it is not important; it is purely because of the legislative program before the Senate. I shall deal essentially, with' some preliminary comments, with those points which may be of some difference and which may need some clarification. Firstly I will dispose of the States Grants (Nature Conservation) Bill. This Bill owes its origin to two streams of action- to the House of Representatives Select Committee on Wildlife Conservation, a committee which was set up during the lifetime of the former Liberal-Country Party Government, and to the Committee of Inquiry into the National Estate, a committee which was set up by the present Government. Each of those committees in its several ways made recommendations. The House of Representatives Select Committee on Wildlife Conservation recommended that grants be provided to the States to enable them to acquire areas of wildlife habitat which are of natural significance. The Committee of Inquiry into the National Estate recommended that grants be made to ensure that adequate funds are available for the acquisition of land for national parks. This Bill therefore provides for $9m to be made available in this year's Budget as part of a 3-year program for the expenditure of $20m on the acquisition of land for national parks and nature reserves. The Opposition fully concurs with that measure and will give it a very speedy passage.

The National Parks and Wildlife Conservation Bill is a very significant piece of legislation. In introducing this Bill on behalf of the Government the Minister for Repatriation and Compensation (Senator Wheeldon) said:

The Bill proposes the establishment of a professional service to enable the Australian Government, for the first time, to bring a co-ordinated approach to the management of nature conservation resources in the areas under its direct control.

I emphasise that if in its powers and provisions the Bill were to do those things it would have the emphatic support of the Opposition. But there may be points of disputation in that respect. I wish to acknowledge, if I may, the co-operation given in the other place by the Minister for the Environment and Conservation, Dr Cass, to my colleague Mr Hunt and in this place by the Minister for Repatriation and Compensation in an attempt to remove the areas of disputation in the Bill. I believe that in the general thesis, the general philosophy, of this measure there should be and there is a substantial degree of bipartisanship and that there ought to be in this Commonwealth Parliament a dedication to the purpose of the Bill. That being so, the areas of disputation really arise as to whether the Bill in itself seeks to do those things or to do more than those things. At the outset I indicate that I propose to move ah amendment to the motion for the second reading of the Bill. I move:

At end of motion, add- but the Senate is of the opinion that the Legislative Assembly for the Northern Territory should not have been bypassed and that statutory authorities and voluntary environmental and conservation groups in the Territory should be directly and continuously involved in the preparation, and review of the plans of management and the administration of parks, reserves and wilderness zones within the Northern Territory. '

I have raised this matter because of the considerable volume of protest- protest which in my view is justified- which has come from the Northern Territory. Over the years the Northern Territory has had the Northern Territory Reserves Board, which has some 37 reserves under its control. It has been acknowledged by all sides as being highly efficient and highly able. There is no mention of it in this measure. In the interim the Legislative Assembly of the Northern Territory has been set up. lt ought to have some authority to provide some help and to play some advisory role in the planning of the whole of this function in the Northern Territory. There is no mention of its role.

During a period of some 18 months in which the Bill was in preparation the Parliamentary Joint Committee on the Northern Territory which was examining the constitution of the Territory said that there should be an official sharing of the remaining functions in the Territory. The Committee felt that the sharing should include urban affairs, roads, ports, fisheries, wildlife and national parks. Therefore, with the existence of the Northern Territory Reserves Board, with the existence of the new Legislative Assembly and with the report of the Joint Committee, one feels that there is utter justice in the complaints that come in very strong terms, particularly from Dr Goff Letts, the majority leader in the Assembly, saying: 'Why are we not consulted, why are we not being taken into partnership and why do you not delay this measure until you have consulted with us?'

The Federal Opposition believes emphatically that the Northern Territory Legislative Assembly has justice on its side in this complaint. It urges the Government at this late hour to consult with the Assembly. However, the Opposition does not wish that the Bill be held up in so doing. But it so happens that due entirely to the Government's own scheduling of this and other conservation Bills, the Bill will not become law until February or March. This I stress, has not resulted from any resistance by the Opposition. It is purely because of the scheduling and may be due to mechanical reasons of the Government. It happens that the Government has some 3 months before this Bill can become law. Therefore there is no justifiable reason why it should not consult with the Assembly, with the Reserves Board and with the other ecological bodies in the Northern Territory. I invite the Minister to bring to the attention of the Minister in the other place the fact that there is time available in which these consultations can take place.

Inevitably this Bill will raise a series of challenges as to its true purposes. One of its main challenges is that it seeks to derive powers from a series of alleged heads of power. Mr Ellicott, my colleague in another place, in what I thought was an elegant expression, said that clause 6 is an expression of determination and a confession of uncertainty. That in itself has some elegance because as the Minister acknowledges with a smile clause 6 is one which seeks to establish heads of power. There is a certain audacity about this, a certain almost buccaneering audacity which seeks in a fascinating way for the first time to establish a head df power which is not written in the Constitution but which is as it were, the infusion of the whole Commonwealth Constitution. Clause 6 seeks it, using its words, having regard to its status as a national government. I should think that would keep many silks and many High Court judges busy for many years. It seeks power over territories and clearly it has that power. It seeks power over coastal areas and no doubt the High Court will have a lot to say about that. It seeks power within the States in particular ways and it seeks power from its external powers relating to foreign treaties. Therefore it looks to such powers as those over trade and commerce, and tourism and, of course, to its external powers. Iri the Committee stage I will refer to the problem of relying on external treaties because this in itself is debatable. The Opposition will have something to say in that regard.

The Minister for Environment and Conservation in another place has said repeatedly that it is not the intention of the Commonwealth Government to seek to override or to supplant the States in their role in connection with national parks, wildlife and nature conservation. I should add that one would hope it would not do so. The simple fact is that it has been the States which have been the pace setters in this field. My own State of New South Wales in particular is a world leader. I think it is fair to acknowledge the work of Tom Lewis, the present Minister for Lands and Premier-elect, in this role which is acknowledged world wide. It is important that I say, although it is not the final goal, that the city of Sydney, if taken to have a radius of 72 miles, has 18 per cent of its land as parkland. I think that is without compare world wide. It is not enough, certainly, and we should press for more green belt areas, the lungs of a city. They are vital. How good it is that this situation exists in Sydney. How good it is that in the space of some 9 years in my State of New South Wales the areas of natural parks have substantially more than doubled: They have increased far more than that because some 2 million acres that were in existence before the Askin Government came to office were taken up almost entirely by the Kosciusko National Park. The additional 2 million acres or more are new. and quite exciting parks.

It is important to recognise that the Commonwealth is not coming in as a pace setter. Hopefully the Commonwealth is coming into the field to look at its role in the Territories, as well as other roles, but if it is keen on co-operation, as it says it is, it will have to co-operate with the States. The Minister said that the National Parks and Wildlife Service also will facilitate cooperation with the States in the nature conservation effort and the meeting of Australia's obligations under the increasing number of international agreements. The Minister emphasised that this will be done by co-operation and presumably, therefore, by the States doing the job because they are equipped to do it. There are. many other statements by the Minister recorded in Hansard signifying this aspect.

In the course of the Committee debate the Opposition will be moving a substantial amendment to ensure that land shall not be acquired by the Commonwealth Government, if the land is dedicated or reserved under a law of a State, without the consent of the State, for purposes related to nature conservation, and so on. I think this will be a real test of the bona fides of the Commonwealth as to its co-operation. The Minister, Dr Cass, has been quite emphatic and I accept his sincerity in that regard. The Bill has to take into account that there is the likelihood of applications for mining in such wildernesses, reserves and national parks. The Government has done something in this respect that I think the Opposition would approve. It has said that there must be a plan of management in this regard and that the plan must be approved by both Houses of the Parliament. One would not want it otherwise. It is a moot point whether mining should be carried out on national parks or wildernesses. Therefore the test in the end should be that such things should come back here. The Opposition will be moving some amendments to ensure that nothing in this Bill makes it simply an instrument of mining for the Petroleum and Minerals Authority acting as a socialist instrument of Government. The Opposition believes that the Bill as it now stands could be taken to provide a monopoly for the Petroleum and Minerals Authority and for the Minister for Minerals and Energy. We will move appropriate amendments in this regard.

Equally, we have some worries about the extent to which this Bill seeks to extend itself, since it appears to take upon itself the creation of national parks upon the high seas. It is well for this Senate to remind itself that there is an international convention called the High Seas Convention. I shall read to the Senate Article 2 of that High Seas Convention. It states:

The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States:

(   1 ) Freedom of navigation;

(   2 ) Freedom of fishing;

(   3 ) Freedom to lay submarine cables and pipelines;

(   4 ) Freedom to fly over the high seas.

Senator Georges - That is not quite relevant. You are going well beyond the Bill.

Senator CARRICK - Senator Georgeshas interjected that that is not quite relevant. The lawyers both inside and outside this Parliament say that this Bill does seek to go beyond territorial waters onto the high seas. If it does not, it is very simple and the Bill should restrict itself. But the constitutional lawyers say this emphatically and there has been strong argument mounted that there is a case to argue that the Bill would infringe the Convention on the High Seas.

Senator Georges - Let us test it then.

Senator CARRICK - It is suggested that we should test it. This is not the way to bring down a Bill. One does not make a pot to boil one's potatoes by first putting a lot of holes into it like a colander and then saying: 'Let us see if it leaks'. This seems to me absolute nonsense. One should make it as leak proof as possible in the first place to boil one's potatoes and not have it like a colander..

Senator Georges - That has already been done.

Senator CARRICK - One bows to Senator Georges' knowledge of constitutional law. It is fair to say that all over Australia the lawyers, academic and political, are arguing today as to the extent of the powers of this Bill. I do not hold up, and I hope Senator Georges will not, the debate on the second reading of this Bill. It is not of our choosing that there is delay on this second reading. The delay on this second reading is caused by the scheduling of this Government in bringing the Bill into this House at this time. This Bill is of such profound importance that it should have been brought in to the Senate some weeks ago and this Senate should have to have some days to consider it. I acknowledge the fact that every honourable senator shares as fervently as I do views and philosophies on this matter. If indeed Senator Georges wishes to argue a constitutional point now, I have no doubt that he equally fundamantally has his views.

When we get to the Committee stages I shall talk about international treaties. The Bill seeks by regulation to put into effect international treaties. This is of very considerable importance. It would mean that the first thing people would know of an international treaty, it having been signed, would be that a series of regulations would be made. The Government was good enough to provide me with copies of 5 conventions presently in existence, the names of which I shall have recorded in Hansard in due course. The leading one on that list is the Convention concerning the Protection of the World Cultural and Natural Heritage. The powers under it cover virtually anything and honourable senators should bear in mind that the Bill seeks the power to make regulations under this Treaty and some 4 others. Although I will not read it all, Article 2 says:

For the purposes of this Convention the following shall be considered as cultural heritage:

Monuments, architectural works, works of monumental scuplture and paintings, elements of structures of archaeological nature, inscriptions, cave dwellings and combinations of features which are of outstanding universal value, groups of buildings, groups of separate or connected buildings which because of their architecture, their homogeneity or their place in the landscape are of outstanding universal value. from the point of view of history, art or science -

May I concentrate on this next item - works of man or the combined works of nature and of man.

I pause here simply to say that solemnly this Bill seeks to give permission to a government to make regulations under this Treaty which has never been before this Parliament, which has never been ratified by this Parliament and which has never been embodied in legislation. The Minister himself would admit that it is slightly too broad a term of reference to be able to make regulations concerning the works of man or the combined works of nature and of man. I read the Article merely to emphasise to the Senate that if we are talking of colanders, here is a treaty, one of some 5, which would virtually allow a government by the device of an international treaty to do anything.

The Opposition does not want in any way to white-ant the substantial nature of this Bill. I have pointed out to the Minister that there must be ways of remedying it. For example, we as a Parliament ought to be looking towards methods not merely of signing a treaty, but of ratifying a treaty, giving to it the force of law, and from that body of law regulations to implement what happens. That would be the proper purpose of Parliament. But to have a treaty which may be signed, as it is, and which only 4 nations out of some 100 have gone along with, and then to say that we will make regulations is stretching the powers of government and government by regulation too far.

Senator Georges - Do you agree or disagree with the Convention?

Senator CARRICK -I am asked whether I agree with the Convention. I would say that, like Senator Georges, I had not read or studied this Convention until today when I was given a copy of it by courtesy of the Minister and since he acknowledges by his silence that he has not seen or read it he has answered my question. The fact that we are sitting here considering this Bill when not one honourable senator in the Senate today has either seen or read this Convention is proof of the lunacy of trying to carry a law which enables a government to act under regulation. I am grateful to Senator Georges for his inadvertent and charming help on this question.

Senator Georges - You have read it but do you accept the Convention?

Senator CARRICK - In no sense do I accept that Senator Georges is trying to be vexatious. He is trying to be helpful. I have briefly scanned the Convention and, for myself, it would take some hours really to understand it. Till now no honourable senator in this Senate has seen it and, therefore, quite clearly one would not write into this Bill, the existing Act or the measure foreshadowed anything which would limit the regulation making power to treaties now in existence because this is a treaty now in existence.

I want to pull together the Opposition's approach. We will move from the second reading stage, I hope quickly, to the Committee stage, firstly because we accept the broad principles of conservation and of wildlife and wilderness preservation and, secondly, because the area of disputation can be narrowed. The real question we are asking is: Is the Government sincere in saying that it does not want to take over, forcibly or otherwise, from the States that it does not want to duplicate what the States are doing? What is the Government's view in terms of mining? What is its view in terms of these regulations?

The Opposition intends to move a series of amendments which seek to restrict powers that the Government seeks to take to itself by way of trade and commerce within the States. Quite clearly, the Commonwealth Constitution does not give the Commonwealth power over trade and commerce within the States. It gives it external powers over exports. It gives it a section 92 supervision. The Constitution gives the Government customs power over exports and imports but it does not give it trade and commerce powers. The power to regulate wildlife, flora and fauna, within a State is the sovereign power of the State. We can test this- indeed the Minister for the Environment and Conservation (Dr Cass) has said in another place that he recognises this- by introducing a motion which incorporates the wording that the Attorney-General (Senator Murphy) has used in another device. We will give the Senate the opportunity to accept or reject such a motion.

The States themselves are, I think, naturally suspicious but they are worried about duplication. The States believe it would be crazy if, in the States, another authority were established to set up other national parks, other wildlife preserves and other sanctuaries. The States are doing a first-class job now. If the only limitation upon the States is funds then the Commonwealth Government by co-operative federalism could simply work with the States to extend the functions of these services and of this Bill throughout the States. The Commonwealth then could range far and wide within its own territories. In the belief that to discharge its international treaty obligations it has some sort of section 92 over-fly of the States, the Commonwealth is asserting powers. For example, there is a treaty with Japan concerning migratory birds. One would recognise the need for the governments and people of Australia to preserve migratory birds. The test for this Government is: Shall it do this by cooperative federalism, by drawing the attention of the States to the need and having the States carrying them out or are they going to try to set up a unifying system?

The ACTING DEPUTY PRESIDENT (Senator Marriott)- Order! The honourable senator's time has expired. Is the amendment seconded?

Senator Guilfoyle - I second the amendment.

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