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Thursday, 17 May 1973
Page: 2308

Mr JACOBI (Hawker) - I rise to support the Bill. The issues raised by this Bill have been frequently canvassed in this House. Today I propose to offer a number of reasons why it is imperative that the legal status of Australia's off-shore areas be resolved once and for all, and to point to some of the very great legal complexities which hinder a ready solution and which make effective action almost impossible before there is a solution. Two sorts of problems are thrown up by the legal considerations relating to Australia's offshore areas, both of which have been well dealt with before in this House and which therefore merit only brief consideration from me. The first relates to the problems of zones of jurisdiction in Australia's off-shore areas. There are 3 sorts of maritime regime here. Firstly, there is the area of internal waters - that is waters within certain sorts of bays and gulfs - where jurisdiction is now exercised by the States, but to an uncertain extent. The present Bill makes it possible that there will also be some areas of Commonwealth internal waters located immediately outside State internal waters.

Secondly, there is the territorial sea, over which it was assumed until recently the States had jurisdictional rights, but which under this Bill is subjected to Commonwealth control. The territorial sea is a coastal belt extending from the low water mark and the exterior limit of internal waters out to a distance which Australian practice has fixed at 3 miles. International practice has not been able to reach a satisfactory consensus, but seems to be moving towards agreement of 12 miles. The present Bill leaves the Executive to fix a distance. Thirdly, beyond the territorial sea there is the high sea in which international law, such as it is, reigns supreme. The problem created by these various zones is that around a complex coastline the regime of law can alter from internal waters to territorial sea to high seas and back again with bewildering frequency. Federalism compounds the problem because a change in zones can mean the change from Commonwealth to State control and vice versa, and around the coast near State borders there is also the problem of change from State law to State law, and indeed British law.

Is it any wonder that we are breeding a race of neurotic fishermen and confused navy commanders, or that ships off the Australian coast can pollute with impunity? The present Bill goes part of the way to resolving these problems, but unfortunately the difficulties created by a complex coastline, with its various indentations, islands and reefs, most probably cannot be solved unless whole areas were to be enclosed or 'squared off' and such action would surely be adversely received in the international arena.

The second sort of problem relates to control of offshore resources. This Bill vests sovereign rights over the continental shelf in the Commonwealth, to the limit which the Geneva Convention permits. I make no apologies to this House for that. As we all know, we live in a federal system. This means that within our municipal system of law, responsibilities are divided between 2 sorts of politics. On an international plane, Australia is recognised as an independent State and therefore has international obligations. The dilemma thrown up by a federal system is that sometimes the powers and responsibilites conferred on the 2 sorts of politics by firstly the international system, and secondly the municipal system, do not coincide.

With this lack of coincidence comes an almost impossible situation for Australia in international affairs. On the one hand, Australia is looked to by other States to undertake certain international actions and, on the other, the only government recognised internationally as representing Australia has no municipal power to execute those actions. Queensland, Australia and Papua New Guinea are classic examples. The High Court appears to have recognised this problem in part in its interpretation of the external affairs power. Likewise our founding fathers were aware of the problem when drafting the Consi tut ion, and generally attempted to locate external or national power in the Commonwealth. However constitutional draftsmen are not seers, and can only be expected to make allowances for conditions as they experienced them. Conditions, national aspirations and even some fundaments of Australian federal existence have changed considerably since 1900.

In my opinion, it is for instance, ludicrous today that having overcome competition between the States for international loan funds, we still have the possibility of States competing against each other to attract capital to develop their resources, including off-shore resources, frequently to the detriment of Australia as a whole. The only way Australia as a nation can benefit is to present a united front. It is ludicrous that today when the energy crisis is a major global problem, possibly the global problem for the rest of the century, with the horrible spectre of trade wars before us once more, Australia has difficulty in rising above the level of federal-State bickering to develop a national policy.

Our federal system may be looked at in 2 ways. It may be viewed either as a loose confederation of quasi-independent states, or as a national federation. I do not apologise for viewing it as the latter. Or if I may paraphrase something which the honourable member for Moreton (Mr Killen) said on another occasion in this House, I am an Australian first, and then a South Australian. And it is about time we acknowledged that our Constitution should no longer be used as an obstructive document, which can be quoted by any partisan politician for his own purposes. Our Constitution must be clear, dynamic and forward looking, and it must, in my opinion, serve the purpose of an Australian federation of States, and not preserve a confederation. If our Constitution cannot serve us like this, it must be changed. If the law exists to frustrate common sense, then the law must be changed.

In light of what I have just said, I propose to look at some of the difficulties created for the Commonwealth in matters concerning offshore areas by our Constitution - difficulties which unfortunately may not be entirely cured by the present Bill. Starting not with part II of the Bill, but with the innermost region of off-shore waters, we are confronted by the problem of so-called internal waters - the bays, gulfs, estuaries, ports and harbours around our coast. I emphasise initially that these waters have a singular legal character. Both in international law and our own municipal system, they are for legal purposes assimilated with the dry land. That is and again I emphasise it, because it has important legal consequences they are as much part of the land territory as the sites of our capital cities.

The present Bill purports to fix the limits of internal waters as they were at 1st January 1901. Quite obviously this is done with 2 legal assumptions in mind. Firstly, Section 123 and indeed also Section 128, which is the general referenda section, of the Constitution, prevents the Commonwealth from altering the limits of any State, including the maritime limits, without a nationwide referendum. Therefore the Bill purports to fix limits and not alter them. With this first assumption I think I would agree. Secondly, the Commonwealth in its attempt to set limits on internal waters without altering any boundaries, has purported merely to fix the limits of internal waters as they were at Federation. The legal assumption here is that Federation in some way froze the limits of the States at 1901. With this assumption I do not necessarily agree.

The legal arguments are quite complex, but briefly they appear to be as follows: Firstly, the Imperial instruments establishing the colonies, by prerogative or legislation, except in the case of South Australia, do not make any reference to bays and gulfs, when defining colonial boundaries. Since internal waters were treated as part of England by both the common law and British executive practice - although to different extents - before the establishment of the Australian colonies, it must be presumed that such waters become part of the colonies. This is expressly stated in the case of South Australia in the Letters Patent of 1834, although in all cases their extent is uncertain.

Secondly, it is possible that the extent of internal waters was defined either by customary international law or the common law. The standards for enclosing internal waters in both these systems have varied and evolved over many years. If it is decided that a contemporary standard in customary international law was not meant to be the basis for enclosing internal waters in the Australian colonies, we must look to the presumption that the common law was intended to define what was a legal bay or gulf. The common law of England, up to the date of settlement of the Australian colonies, had used various tests to legally enclose indentations. From the time of settlement the common law as developed in Australia takes over the task of definition. In simple language all this means is that a court of law in Australia must be the final arbiter of what constitutes the internal waters of the Australian States. Once a court has arbitrated, then the Commonwealth may act to fix the limits of internal waters, according to the court's decision. But any attempt to pre-empt a court's power to decide the issue can only be regarded as an attempt to alter the boundaries of internal waters from some theoretical or posed standard, contrary to Section 123 of the Constitution, and will be ineffective in preventing litigation on whether or not there has been an alteration.

Thirdly, there seems to be no clear and explicit reason from the terms of the only 2 relevant Acts - the Colonial Boundaries Act 1896 and the Austraiian Constitution - to suggest the boundaries of Australia's internal waters were frozen at 1901. It is conceivable that the extent of legal bays was not frozen at their common law extent in 1900, but has continued to alter with alterations in the common law since 1900, and therefore the extent of internal waters within a State is today simply what a common law court says it is today, using today's common law criterion or definition of a bay - that is, it is all up to the judges.

On the other hand, if it is true that the extent of internal waters was fixed at 1900, as this Bill seems to assume, the problems are a little different. It becomes necessary to ascertain what were the limits of internal waters at 1900. This must be done by court decision before this Parliament can legislate to fix those limits. A good argument can be made out for saying that the limits of internal waters in 1900 were those established at the time of settlement of the colonies, and it can further be argued that at the time of settlement, despite the uncertain state of the common law which was moving from variations of a range of vision test to an ad hoc test which enclosed each particular bay or gulf on its merits. Despite all this, it can be argued that British practice at this time was to enclose indentations with very extensive closing lines, up to 65 miles long as in the case of Shark Bay in Western Australia, across the headlands of the indentation, if there were adequate penetration into the coast. If this can be established to be the case, the Commonwealth might be foolish to abandon enclosure of such extensive waters, because under the Geneva Convention, we would not be permitted to firstly enclose as many 'bays' because the 19th century British legal definitions of a bay would not appear to have been as demanding as the semi-circle formulation in the Convention; and secondly, to enclose bays up to such widths, because the maximum closing line permitted by the Convention is only 24 miles. I have perhaps dwelt for too long on the problems of internal waters, but they are quite obviously very complex legal problems; and the considerations which I have canvassed will at some stage have to be faced by our courts because of the singularly unhelpful nature of our constitutional structure.

The next Federal problem in off-shore areas is the question of sovereignty in the territorial sea. The legal problems here are equally complex. The primary and fundamental question for the lawyers is, apparently, the nature of the coastal States' interest in the territorial sea. If the territorial sea were to be assimilated with the land territory and also held to belong to the States, the Commonwealth, in attempting to gain control over it, once more would be faced with the problem of infringing section 123 of the Constitution. If the territorial sea is found in law not to be equivalent to maritime territory but somehow just a bundle of rights over a sea area, then the section 123 problem might be avoided. Of course, if this Bill is found simply to be enforcing the status quo - that is, declaring the territorial sea, whatever its legal character, to be within Commonwealth sovereignty when that is already the case - then no problem can arise. But, as has been emphasised many times in this House, only a court of law can decide the question of original possession of sovereignty in the territorial sea.

I must admit to being pleased that this Bill vests sovereign control over the territorial sea in the Commonwealth, as I think this will lead to uniform control over activities such as pollution in off-shore areas. However, one problem which has been pointed out to me disturbs me somewhat. It is probably quite desirable that the States have some power to regulate activities in the territorial sea which closely affect their territory. However, if the territorial sea is to be regarded as a place acquired by the Commonwealth under section 52 (1) of our Constitution, then, according to a recent decision of the High Court in Worthing v. Rowell, State laws are excluded from that place. According to my advice, the Commonwealth Places (Application of Laws) Act 1970 will not cure the defect - at least, not so far as the laws passed specifically for the territorial sea are concerned. Apposite to this I make reference to section 122, which relates to territorial powers, insofar as it applied to the acquisition of the Ashmore and Cartier Islands in Western Australia.

Naturally, a decision about ownership of the sovereignty of the territorial sea does not resolve the quite separate problem of ownership of rights in and over the continental shelf. Whilst the territorial sea and internal waters involve considerable legal problems and demand simpler and more efficient legal regulation, in my view control over the continental shelf, especially outside the territorial sea, is the real point that we have all been arguing over these many months. The name of the game is money or, to put it less crudely, national resources. Apart from the question of fishery resources in the maritime zones off our coast, the crux of this Bill is to vest control over the tremendous resources in the continental shelf in the national Government.

Before I conclude, let me make what 1 consider to be an extremely pertinent observation and one that surely ought to exercise the minds of honourable members in both this Parliament and the State Parliaments. Even when Britain gave a good deal of independence to its colonies in the nineteenth century, it recognised that the control of shipping and like matters required uniform control to be effective, efficient and successful. So, down to the present day we have the position that at least some of the rules relating to maritime matters in Australia have continued to be controlled by the British Merchant Shipping Acts which cannot be amended or repealed by our State Parliaments in many cases without the approval of the British Parliament. I draw the attention of honourable members to the recommendations contained in the report of the Joint Committee on Constitutional Review of 1960, in particular in the navigation section dealing with this aspect. This longstanding recommendation that uniformity is desirable, confirmed by the fact that the States themselves have not moved to change the situation, surely shows that at least a set of uniform laws is needed for the control of waters on the Australian coast.

I repeat what I said earlier: The crux of this Bill is to vest control over the tremendous resources in the continental shelf in the national Government. Of course, secure and confident action can only be taken once the extent of control over the other zones - that is, the territorial sea and internal water - has been resolved, because only then can leases be accurately and safely granted and located. But, once this is done, the Commonwealth should have unimpeded control over the seabed resources. I support the Bills.

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