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Wednesday, 1 November 1967

Mr WENTWORTH (Mackellar) - I am not unsympathetic to the amendment moved by the honourable member for Cunningham (Mr Connor), but 1 am not quite certain it does what he says it does. I am waiting to hear from the Minister for National Development (Mr Fairbairn) about the effect it would have on administration. My feelings are deeper and are more radical than those expressed by the honourable member for Cunningham. 1 am afraid that 1 cannot go along with what I can only describe as the Pollyanna attitude of the honourable member for Evans (Dr Mackay) who can see no harm in anything. The whole concept of this designated authority and the way in which it will operate should engage the attention of the Committee. The designated authority, in the terms of this legislation, will have absolute authority. The authority can be qualified only by the Agreement, which will have no legal standing but which has been introduced in parallel with this Bill. 1 want the Committee to look carefully at the Agreement, because 1 think there are some catches in it. Perhaps the honourable member for Evans, because of his background, does not always see catches, but the Committee should have its attention drawn to them. Firstly, it is true that this is a moral agreement and not an actionable one. 1 want the Committee first of all to look particularly at clause 1 1 of the Agreement. This clause is vital to the nature of the designated authority. It states that the Commonwealth Government will, in giving directions, take into account certain named responsibilities, lt is a wide spectrum but not a complete one. The drafting of this clause is, 1 think, in itself a catch. If it had been honestly done it would have stated: It will take into account all Commonwealth responsibilities under the Constitution including . . .' But it does not say that. It says that it will take into consideration only certain Commonwealth responsibilities. The phrasing of this Agreement is tricky and should be brought to the attention of the Committee. However, let me point out that the big omission from this list is development and mining. Since the Commonwealth has almost undoubted jurisdic tion in the offshore areas beyond the 3-mile limit, it has in these areas the responsibilities for mining and development as it has in Commonwealth Territories. However, under this Agreement as it is drawn, the Commnowealth abrogates all those responsibilities and it cannot give a direction to the designated authority under sub-clause 5 of clause 11 of the Agreement in respect of these vital matters. This is a point of very great consequence. If a difference of opinion arises between a State designated authority - a designated authority is a Minister of a State - and the Commonwealth, then the Commonwealth will have moral recourse to this Agreement. But it will be argued, perhaps in certain circumstances with some force, that the Commonwealth's rights under clause 1 1 (5.) of the Agreement are very limited. Since this is in the area of argument it will be very difficult for the Commonwealth to bring moral - it will have no legal force - suasion upon the State concerned. All that the Commonwealth can do then is to alter the Act or the regulations.

Let us look at clauses 6 and 7. The Commonwealth has pledged itself not to alter the Act or the regulations without the concurrence of all States. This is not a matter which is in the area of argument. This is not something we can argue about. We either alter the Act by overt action in this Parliament or we do not. To take an overt action of that character is clear and definite and not subject to argument. So, under this Agreement, what can happen is that the designated authority, being the authority of a State, has a colourable argument on moral grounds and the only recourse that the Commonwealth can have is a clear course which is a violation of the moral agreement, lt can only be justified if it can be established that there has been a prior violation by one of the designated authorities. Thi*- is just what we will not be able to establish clearly because under the trick of drafting of clause M of the Agreement the designated authority of a State will always have a colourable argument. So in this moral and political sphere where legal action is not possible, the Commonwealth will be caught. The Commonwealth's only action is to take a course which is in clear violation of the Agreement and which can only be justified if there is a prior clear violation of the Agreement by some other authority. But, that clear violation may not occur because, as 1 have said, of the peculiar drawing of clause 11 of the Agreement. The clause should never have been drafted in this form. The great omission from st is the Commonwealth's rights over development and mining in what are Commonwealth Territories in the offshore areas outside the 3-mile limit. This vitiates the whole basis of the designated authority. I find it very difficult in this rather peculiar situation where we have something which has no legal effect but is said to have a moral effect and where the drawing of the clauses on which the moral effect depends is so sloppily done or perhaps so trickily done, lt has perhaps been put over the Commonwealth by the States. Perhaps the Commonwealth did not realise what it was signing. Because of the omission of those words and because of the way in which sub-clause 2 has been drawn - it has to be read in conjunction with sub-clause 3 of clause 1 1 - we have reached a position where the Commonwealth can be very much prejudiced. I think this goes far beyond the matters raised by the honourable member for Cunningham. I do not feel unsympathetic to what he has said, i am waiting for the Minister's reply, lt may be that administration justifies this kind of delegation. However, delegation is not of prime importance. What is of prime importance is the nature of the designated authority itself. Even if we had no delegation, the powers of this Parliament would still be given away and given away virtually forever if this clause is passed in this fashion. Instead of doing this, which is not terribly effective, 1 would prefer to look at the substance of the Agreement later on, particularly in relation to the vital matter of exploration permits which is far more important than the matter of production licences.

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