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Tuesday, 6 November 1973
Page: 1556

Senator GREENWOOD (Victoria) - I rise once again to speak in the second reading debate on the Seas and Submerged Lands Bill 1973 (No. 2) and to make a protest on behalf of the Opposition about the cavalier way in which the Government has treated the Senate and this Bill. It was introduced into the Senate on 25 September 1973 while there were 2 existing Bills dealing with exactly the same matter on the notice paper. On Wednesday, 24 October the Government brought it on for debate at 10.40 p.m. We then proceeded with the debate for the remaining 20 minutes of that day knowing full well that the Government was not proposing to debate the Bill the next day. Of course, the Government chose to bring the matter on again on 6 November and we still have our rather accustomed 20 minutes in which one may address oneself to the Bill before the Senate rises. We are assured that we will not be dealing with this Bill tomorrow. So I proceed to the second instalment of the second reading debate on this measure.

I must say that if it is the important measure which the Government claims that it is- I for one certainly do not under-estimate its importance- I think that the management of the Senate might have permitted a better consideration of its contents than has been permitted. When, after tonight, we will return to the Bill I suppose only Senator Cavanagh and Senator Murphy know and I guess that they have not had time to get together and decide when that will be. I suggest that it is a matter upon which the Opposition is legitimately entitled to register its protest.

I had on the earlier occasion indicated the situation which had arisen in Australia with regard to the competing authorities asserted by the States and the Commonwealth over the off-shore waters, the seabed and the air space above the waters around the whole of the geographical land mass which we know as 'Australia'. It is remarkable how in a relatively short space of time the economic potential of these areas, quite apart from the ecological considerations which we all recognise as attaching to them, has become a matter of enormous concern.

The real concern which is at the base of this Bill is who may exercise the legislative authority and the jurisdictional authority over events and matters which occur in this area. I stress that the position is far from clear. It was not a matter to which the Constitution adverted when it was formed in 1900 for the simple reason that it was not a matter of concern to anyone at that time. It is not an issue which has been canvassed in any definite way by the High Court which is charged with the responsibility of making a decision in this area. The one attempt at co- operation in the area of petroleum exploration and exploitation did result in a measure of agreement which has produced results. I have nevertheless indicated the view of the Senate Select Committee on Offshore Petroleum Resources which I am sure would have weight with the Senate if ever the matter were sought to be raised in the same form again. But we look ahead to the future and we recognise that there ought to be some clear indication as to where the limits of State authority reside and where the limits of Commonwealth authority reside.

I indicated on the last occasion that I spoke on this Bill that I proposed to refer to what the Senate Select Committee on Off-shore Petroleum Resources had to say on this. I refer specifically to the reasons which the Committee advanced in chapter 6, paragraph 338 on the problems which can be created by the lack of resolution of the question of where authority lies in the off-shore seabed and why the Committee ultimately recommended that the lack of resolution of that question was not in the national interest. The Committee states in its report that it believed that the features of the constitutional conception underlying the Petroleum (Submerged Lands) legislation to which it had taken objection arose directly because the issue of constitutional authority had not been resolved.

There is a lack of ministerial responsibility or accountabiliity in certain areas because the source of power for which the responsibility exists is not known.

Put into the practical terms of how it affects Australians, it is a matter of knowing whether, if one wants to register a protest, one protests to the relevant Commonwealth Minister with some responsibilities in the area or goes to the State Minister. In either case there is uncertainty as to the extent to which the Minister can give a responsible answer and render himself accountable in the manner in which our parliamentary system presupposes he should. We have seen this in various areas under the Petroleum (Submerged Lands) Act. We have seen it in the area of the Great Barrier Reef where the only way in which a vexing problem could be tackled some 3 to 4 years ago was for a joint royal commissioner, to put it technically in legal terms, 2 royal commissions each consisting of the same persons but appointed under different charters- to be appointed to examine the extent to which the Great Barrier Reef could be subjected to petroleum search and exploitation.

Senator Wright - It is surely the longest royal commission in our time, is it not?

Senator GREENWOOD - I concur in what Senator Wright said. I might add that from what I have heard it probably also is the most expensive. The second consideration raised by the Senate Committee was as follows:

The development of petroleum resources of the off-shore seabed is not the only matter in respect of which constitutional power is important. There are many other natural resources of potential for which exploration and exploitation will occur and for which administrative and regulatory provisions will be necessary. At the present time, the source of authority for these provisions is unknown and will continue to be so until the constitutional question is resolved. The first occasion on which the question of constitutional authority arose, namely, the immediate need to provide security of title in search for petroleum resources, was not taken as the opportunity to resolve the question. There can bc no certainty that the exigencies of a different occasion will produce a similar agreement and legislative scheme as was produced for petroleum resources nor should it be supposed that seven Parliaments would again concur in an identical or similar scheme.

I believe that this is the situation with which we are now faced. There is potential- I do not think there has been a great deal of research as to what the potential is, but it is accepted that there is some- in areas of minerals other than petroleum. I do not think there is the same urgency attaching to ascertaining what resources the seabed might offer as existed in regard to petroleum some 10 or more years ago; but the fact that the resources are believed to be there, and in some cases known to be there, raises the ultimate question as to who may give the authority to anybody who wants to explore in that area with a view to developing what resources may be there. We will never have the development which we would like to see in these areas if the persons who are to expend money with the ultimate gain ahead of them are not sure that the expenditure in which they are engaged will enable them to reap the fruits of that expenditure. That requires someone being able to give them security of title. This is a fundamental aspect of this whole question.

I turn now to the third point in this particular paragraph of the Senate Committee's report. It should be recognised that this is a tremendously significant aspect. The Committee's report states:

In respect of matters such as protection and conservation of natural features and resources of the off-shore waters and the off-shore sea-bed, the question of who has authority or responsibility to act is unknown. In areas of public and political controversyinto which questions of conservation and pollution have moved- the inability to identify political responsibility is as unsatisfactory as the inability, because of disputes and uncertain power, to initiate action or authoritatively to disclaim responsibility. This must remain the situation while the constitutional question is unresolved.

The Senate Committee went on to refer to other matters which arose from the international convention to which Australia was a party but which I do not think are as closely germane to the issues raised by the Seas and Submerged Lands Bill. This matter of having the question of authority resolved is one which, I believe, has to be faced, and the effort in facing it involves different approaches. With the change of government last year the approach being followed by the previous government was discarded and the approach which is implicit in this Bill is now being pursued. I always have believed that even when the question of where authority lies has been resolved there is an equal problem which requires resolution, and that is the question of how we can develop a regime under which the resources in this area can be exploited. This was a view which the Committee acknowledged and to which it gave expression. I refer to paragraph 6.332 of the report. The Committee had considered certain hypotheses because the extent of the Commonwealth's powers and the States' powers was unknown. The Committee report states:

On either hypothesis there is a clear warrant, in the Committee's view, for co-operative arrangements to be made by the Commonwealth and the States, and on any view of what the Commonwealth and States' powers in the off-shore areas are (other than complete State control) the need for a scheme under which off-shore operators deriving their authority from the Commonwealth may expect complementary facilities on shore from State authority is self-evident. Even if there were complete State control, some complementary Commonwealth action in certain areas, as the States have conceded, would appear to be desirable.

It is abundantly clear from the situation in the United States of America and Canada- both federations comparable with Australia- that a problem is not solved just by getting a decision from the courts as to where the legislative authority lies. As I recall the dates, the decision of the Supreme Court of Canada was given in November 1967, which was about the time the Petroleum (Submerged Lands) Bill was passed through the Senate, and to this day- or rather, until earlier this year when I checked the positionthe question of exploitation of the off-shore waters of Canada has not been resolved. It was clear from the Supreme Court's decision that authority from low water mark seaward rested with the Dominion Government and that the Provinces had no legislative authority in that area. Such have been the difficulties of cooperation and such have been the problems involved in working out a co-operative regime that the real situation of exploiting what may be there has not been attained.

There are, therefore, 2 fundamentals which have to be linked in any resolution of this problem: Firstly, to know what the limits of authority are- and that is tremendously important because we do not want to have a vacuum in which no one has the responsibility- and secondly, when we do know where the authority lies we must have a working-out, together or co-operatively, of whatever regime we have in the off-shore waters. For my part, I cannot see the Commonwealth on its own being able to administer a scheme against the opposition, active or passive, of State governments. Equally, I could not see the State governments, if they were to have authority over part of the seabed or part of the waters, being able to administer a scheme in conjuction with the Commonwealth unless there was a common basis upon which both the Commonwealth and the States gave their titles and permitted operations to occur.

In parts I and II of the Bill the Commonwealth makes its assertion of sovereignty, but the mere assertion of sovereignty does not by itself confer sovereignty upon the Commonwealth. The question of where sovereignty lies is to be determined in this country by the High Court of Australia. The Commonwealth's claim is simply a claim and no more. If the States were to claim, they would have a claim and no more. I illustrate this point by a simple analogy. If a disputed area of land is claimed by 2 persons, each maintaining his ownership and his right to possession against the other, the question ultimately can be decided only by taking the matter before the courts of the land. It does not matter how emphatically or how persuasively one claimant asserts his rights; the mere assertion does not give him title. Of course, if a person takes possession and does things on or over the land, this amounts to something more than an assertion. It is an assertion coupled with an exercise of a right. Therefore, it would be tantamount to exercising the rights claimed. It would be giving effect to the assertion.

We believe that while the Commonwealth is seeking to resolve this matter by making the assertion it ought not, pending a decision as to where the sovereignty lies, be able to proceed further and to take those acts which are implicit in the type of regime- the mining code- which is embodied in Part HI of the Bill. As I understand the position, there is no urgency which requires this matter to be resolved overnight, as it were. The leisurely passage of this Bill through the Parliament, I think, bears out that statement to some extent. At present the effective rights which are exercised over the territorial seas and the continential shelf are those rights which are exercised by the States. State laws are the laws which are regarded as having operation over the waters adjacent to the State. I leave aside questions relating to fisheries because they have an expressed constitutional backing. The control of ports and harbours, the construction of piers, wharves and jetties, and the enforcement of laws on the coast relating to the conduct of boating, navigation and so on are the subject of State laws. The question of petroleum exploration, which raises the same doubts as are now current when the issue first arose 10 or more years ago, was resolved by the Petroleum (Submerged Lands) Agreement to which I have referred and by the passage of the legislation.

Now the Commonwealth is seeking to have the matter resolved. If one accepts the statement of the Minister for Minerals and Energy (Mr Connor), when he first introduced the Bill in the House of Representatives, he is inviting the States to challenge the matter. Apparently in the intervening months, according to the second reading speech in this place, the matter has been resolved in favour of the Commonwealth without the High Court having to make a decision. But this is possibly only a matter of terminology. A tremendous amount could be said on this issue because it is a wide ranging issue with many ramifications. I know that it has been said in certain places that the projected Law of the Sea Conference, now to be held in 1974, would be delayed as far as Australia's claims before that convention are concerned unless we have the matter resolved in Australia. I do not think that is a relevant consideration in any sense.

As I understand the position, there has never been any challenge to the Commonwealth's absolute authority to represent Australia at international conferences and to express a view on behalf of the nation at the Law of the Sea Conference. It is only when such decisions are arrived at in the international conventions and when an application of that convention within the Australian municipality arises that the basic question has to be decided as to how whatever authority is conferred by the convention is divided between the Commonwealth and the States. It may be that as a result of the forthcoming convention those questions will arise in a way in which they have not arisen in the past. If that is so, all the more reason why the question ought to be resolved. We know that this is an area in which the States have maintained a strong view over the years. The Opposition, when in government, sought to resolve this matter by co-operation. Considerable advances were made at the meeting which took place between Mines Ministers and States Premiers in August last year. The agreement which was reached there would have been continued but for the change of government. As I have indicated, a different approach has now taken place.

I conclude by saying that the Opposition, while supporting this Bill and indicating its intention to seek to amend Pan III, wishes that the cooperation which had commenced, albeit somewhat belatedly, had continued through and in agreement some resolution had been reached. Whatever the ultimate outcome is, we can never expect to utilise the full potential of our off shore waters and sea bed unless there is agreement and co-operation between the States and the Commonwealth.

Consideration interrupted.

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