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Wednesday, 10 May 1972
Page: 1527

Senator CANT (Western Australia) - I remind Senator Negus that there is one area of probate duty that perhaps he should explore. That is the amount of Australian wealth that is owned overseas and upon which probate is never paid. It is an enormous amount of wealth. Probate on it could return to the coffers of Australian governments quite a sum of money which would be able to assist in- the provision of relief to the dependants of those in the lower income bracket at the time of death.

I rise to discuss the report of the Senate Select Committee on Off-shore Petroleum Resources. This report was presented to the Senate on 10th December last. Certain assurances were given that time for a debate on it would be made available. After this week, 2 sitting weeks of this session of the Parliament remain. It does not seem to me that, in the last 2 weeks of this parliamentary session, time will be given for a debate on this report.

The Committee was set up in 1968. It was charged with the duty of inquiring into and reporting upon the legislation relating to off-shore petroleum resources which had been passed in November 1967 by both Houses of the Parliament. The first problem that the Committee ran up against appears in the Preamble to the Petroleum (Submerged Lands) Act which, in paragraph 4, states:

AND WHEREAS the Governments of the Commonwealth and of the States have decided, in the national interest -

I draw particular attention to the words 'in the national interest' - that, without raising questions concerning, and without derogating from, their respective constitutional powers, they should co-operate for the purpose of ensuring the legal effectiveness of authorities to explore for or to exploit the petroleum resources of those submerged lands:

It has been amply borne out, in my opinion, that the adoption of that principle in the Preamble was not in the national interest and that the sooner some action is taken to clarify the position with respect to the off-shore areas of Australia the sooner Australia will be in a respectable position in the international legal field. Once the Commonwealth and the States agreed to include in the Preamble that paragraph to set aside but not to derogate from the powers of either the Commonwealth or the States in this off-shore area, they created a shambles.

First of all, they created an impossible position for a draftsman seeking to draft legislation that would fit into this extraordinary position of one group of governments with almost absolute powers and another government governed by a written constitution. Once that principle was adopted, the draftsman was in an almost impossible position in drafting legislation that would regulate this industry.

The interim report of the Committee is included in its final report. In that interim report, the Committee came to this conclusion:

That, notwithstanding the advantages to the national interest -

I do not see very many advantages - . . 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.

I do not think that stronger words than those could have been used by a committee making recommendations to the Government on its legislation. I think that it enhances the proposition that, at the earliest possible opportunity, the Government should give this Parliament an opportunity to debate the territorial sea and continental shelf legislation to clear up once and for all this question of who has jurisdiction in this area.

I hope that at the earliest opportunity the Prime Minister will bring on that legislation for debate. Of course it does not in fact set up for the Government machinery for the regulation of off-shore areas. In my opinion section 9 is the most important section in the legislation. First of all I want to attract attention to sub-section (1) of section 9 which states:

Subject to this Act, the provisions of :he laws in force in a State, whether written or unwritten, and as in force from time to time, and the provisions of any instrument made under any of those laws, apply in the adjacent area.

It is not in dispute that under certain circumstances the Commonwealth Government can pick up State laws and apply them in areas where the Commonwealth has jurisdiction. But the question of whether the Commonwealth has jurisdiction over the continental shelf is still very much clouded. The fact is that we work under an international convention known as the 'Convention on the Continental Shelf. Whether the Commonwealth has power to pass laws because it is a party . to an international convention and the exercise of its external affairs power is something which the High Court has not yet decided. Until the High Court gives a judgment there is no surety as to the extent of the external affairs power. Of course it is abundantly clear that the States are unable to legislate extra territorially unless a nexus can be established between the States and the object to be regulated. This is borne out by the South Australian crayfish pots case.

Recently in Western Australia there was a case where a man by the name of Robinson was charged with stealing something from a shipwreck on a reef 12 miles off shore. First of all he was charged under the criminal code of Western Australia. The criminal code of Western Australia sets out to apply to the State of Western Australia. In the preliminary hearing the representative of the Crown Law Department in Western Australia argued that certain waters around Western Australia were part of Western Australia. But when it came to the argument before the Supreme Court that argument was not persisted with. Nevertheless the Chief Justice of Western Australia found that Trial Rocks was 12 miles from the nearest land mass of Western Australia and therefore the criminal code did not apply. That does not end the consideration of whether the Commonwealth has jurisdiction in this area within its external affairs power because it can pick up the Western Australian criminal code and apply it in the area. Until the Government resolves this constitutional question the position is uncertain. It must be uncertain in the minds of operators in these areas because some of them have expressed the opinion that they would like to know just what laws do apply to them in this area. Honourable senators will find mention of this matter in the Committee's report. The position is that we do not know what laws apply. The situation becomes very important when we start to talk about industrial laws which apply in these areas. We have an instance following an opinion by Chief Justice Sir Garfield Barwick and Mr Justice Windeyer in what is known as the La Macchia case that the State jurisdiction finished at the low water mark.

Senator Cotton - Was that low water mark or high water mark?

Senator CANT - It was low water mark.

Senator Cotton - It was clearly low, was it?

Senator CANT - Yes. A dispute occurred off the shores of Victoria on a pipe laying barge. The dispute was referred to a Conciliation Commissioner for settlement. As the powers of Commonwealth Parliament with respect to industrial relations are limited to a dispute extending beyond the boundaries of a State the Conciliation Commissioner could not find the existence of a dispute within these terms and therefore he was unable to settle the dispute which had been referred to him. The dispute occurred off shore. It did not extend on shore. It did not extend into the adjacent area of New South Wales, Tasmania or South Australia and so make it possible to argue that that was interstate. I do not think that such an argument could have been substantiated but nevertheless it did not go that far. We had an impasse. A dispute existed and there was no industrial machinery to settle it. This is the kind of situation that arises if the constitutional position is not resolved. I urge the Commonwealth Government to settle the constitutional position as early as possible. We will not only gain respect in this country but also we will gain respect internationally. At present we are in disputation with Indonesia and Timor over a boundary line of the continential shelf. There was a similar dispute between Norway and Great Britain concerning a deep channel close to the shores of Norway. It was resolved that that was only a trough and that the continental shelf continued over the trough. That may be the settlement to be reached between Australia, Indonesia and Timor. I do not know. But there is international disputation. Surely that should be settled at the earliest possible time.

Nothing has been gained by setting aside the constitutional authorities of either the States or the Commonwealth. This situation has been avoided for very many years. Some years ago there was a case in Western Australia in which the State Government was defeated with respect to authority to legislate extra-territorially. The State wanted to appeal to the High Court of Australia. Pressure was brought by the other States not to proceed because they did not want this position exposed. The appeal was never gone on with. Everyone has directed their attention away from this particular field. It is time someone had some courage. Even if it is found that the Commonwealth does not have any authority in this area, it is better that we know it. It is better that the States know the ambit of their jurisdiction than to be in the clouds as they are at the present time. An agreement underpins this legislation. Section 6 of the agreement provides that amendments to the legislation shall not be made unless the 7 Governments of Australia agree to the amendment of the legislation. Section 7 of the agreement also provides the same conditions with respect to regulations.

In March 1969 at Hobart the committee of Attorneys-General agreed to amend section 9 of the Petroleum (Submerged Lands) Act in order, in their opinion, to do away with some of the anomalies which are created by the present sections 9 and

11.   I do not believe that the new amendment will cure all the ills because the Commonwealth cannot legislate beyond its constitutional powers. Whatever is put in the legislation will either be invalid or it will have to be read down within the constitution. Nevertheless, it is an improvement on the present legislation.

I remind the Senate that this agreement was reached in March 1969 in Hobart and 2 States have since amended their legislation. The Commonwealth has not seen fit to amend its legislation. The State of Victoria has not amended its legislation although until recently, with the exception of the northwest shelf, all the activity had been taking place in Bass Strait. The agree-, ment that underpins the legislation sets out that the legislation may not be amended without the agreement of the 7 governments, but although the 7 governments have agreed to the amendment, 4 States have so far declined to implement the decisions taken at Hobart in 1969. Why have they not done so? I will be frank with the Senate. I know there was delay while the Committee was considering its final report. It meant almost a rewriting of the report, but the report has been in the hands of the Government since 10th December. Since then there has been almost a whole session of Parliament, but the amendment has not been brought before us.

I suspect the reason why Sir Henry Bolte's Government has not brought forward the amending legislation is that he does not want to do so until his amendments are underpinned by the Commonwealth. It is an urgent necessity that the Commonwealth take the initiative and amend its legislation. Instead of squabbling about what is going on in the country and speculating on who will win the next election and on how it will be won, the Government must realise that this important legislation requires amendment at the earliest opportunity. Under the Standing Orders my speech is limited to half an hour, and I do not know what time I started; it will be for the Clerk to tell me when I should finish.

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