29th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Justin O’Byrne) took the chair at 1 1 a.m., and read prayers.
– by leave- I inform the Senate that the Minister for Aboriginal Affairs, Senator Cavanagh, is in Western Australia today on urgent Government business and will be returning tomorrow morning. I will answer any questions today relating to those portfolios for which Senator Cavanagh normally is responsible in this chamber.
– I present the following petition from 24 citizens of Australia:
To the honourable the President and members or the Senate in Parliament assembled: The humble petition of the undersigned citizens or Australia respectfully showeth.
That the National Compensation Bill 1974 and the proposals Tor a new superannuation scheme for Australian Government employees discriminate in the payment of reversionary benefits against the members of families which:
are homosexual families;
do not fit the nuclear family pattern.
Your petitioners therefore humbly pray that the National Compensation Bill 1974 and the new superannuation scheme for Australian Government employees be amended to provide for the payment of reversionary benefits to dependent members of all families, however constituted.
And your petitioners as in duty bound will ever pray.
– The following petitions have been lodged for presentation.
To the honourable the President and members of the Senate in Parliament assembled. We, the undersigned citizens of the Commonwealth, by this our humble petition respectfully showeth:
And your petitioners as in duty bound will ever pray, by Senator Gietzelt.
To the Honourable the President and Members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth that they support the Family Law Bill 1974 which provides for:
Your petitioners humbly pray that the Senate will pass the Family Law Bill without delay.
And your petitioners as in duty bound will ever pray, by Senator Gietzelt (2 petitions).
To the President and Members of the Senate:
The petition of the undersigned residents of the state of New South Wales respectfully showeth the divorce laws of Australia are out of touch with the needs and wishes of most of our people. They are too complicated, too expensive and humiliating to those citizens whose marriages have broken down.
Your petitioners pray that the Senate will speedily pass the Family Law Bill with its provisions for irretrievable breakdown based on one years separation as the only ground for divorce. by Senator Gietzelt.
To the Honourable the President and Members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
That the National Compensation Bill 1974 and the proposals for a new superannuation scheme for Australian Government employees discriminate in the payment of reversionary benefits against the members of families which:
Your petitioners therefore humbly pray that the National Compensation Bill 1974 and the new superannuation scheme for Australian Government employees be amended to provide for the payment of reversionary benefits to dependent members of all families, however constituted.
And your petitioners as in duty bound will ever pray, by Senator Melzer.
– I ask the Minister representing the Attorney-General whether, in order to allay doubts and to ensure that justice is done, he will arrange with the Attorney-General to lay on the table of the Senate the reports of the Commonwealth Police with respect to the charges laid by them against Mr Felton in respect of the break-in of Miss Morosi’s flat which led to the publicised court proceedings last Thursday. Will he explain whether it is a fact that other persons were involved in the alleged entry and the alleged possession and use of false number plates and, if so, why no charges were made against those people? Will he also use the opportunity to table the file so that it may be revealed whether the allegations of conspiracy against unidentified Federal politicians have any basis or whether the allegations which have been made in this House are simply political smears, for which this Government is well renowned?
– I will convey the honourable senator’s request to the Attorney-General.
– My question is directed to the Minister representing the Acting Minister for Foreign Affairs. Has his attention been drawn to a reported decision of the Papua New Guinea Government to postpone a scheduled 1976 election for one year, which in effect would postpone Independence Day? Has the Papua New Guinea Government the power to change unilaterally the year of an election or would this require amending legislation by an Australian Act of Parliament?
-The only information I could give Senator Poyser is that an amendment of the Australian Act would be required. Elections in Papua New Guinea are intended to be held every 4 years. I think the question really should go on notice as it is appropriate that it should be referred to the Acting Minister for Foreign Affairs for a detailed answer.
– Is the Minister representing the Acting Minister for Foreign Affairs in a position to state how many Australian citizens are living in the besieged Cambodian capital of Phnom Penh, and whether any arrangements have been made to evacuate them in the event of the city falling to Communist forces? Can the Minister tell me whether Australia will play any part in the proposed emergency airlift of food supplies to Phnom Penh?
-I would not be able to answer the question except to say that obviously the Australian Government would be concerned if any Australian citizens were involved or their lives were endangered as a result of the fighting which is going on in Phnom Penh. I am quite sure that whatever steps could be taken to assist them would be taken. Again, I will need to refer the question to the Acting Minister for Foreign Affairs for a proper answer.
-Is the Minister for Repatriation and Compensation aware of any dissatisfaction amongst ex-servicemen or ex-service organisations concerning the application of the benefit of doubt provision in the Repatriation Act? What would be the reason for or the basis of this type of dissatisfaction? Can the Minister do anything to correct the situation and to allay the fears of those people?
– I think that most honourable senators and people who have taken any interest in the operation of the Repatriation Act know that over the years a lot of argument has occurred about the famous section 47 of the Act. Section 47 provides that, in the event of there being any doubt in the mind of a tribunal upon the application of a veteran for repatriation benefits, that doubt should be exercised in favour of the applicant. A number of people, particularly applicants and their representatives, have argued in the past that they had some doubt about a matter and therefore, as there is some doubt, they should receive the benefit that they are claiming. This is not really a proper interpretation of section 47. The doubt which is referred to in section 47 is a doubt in the mind of the appropriate tribunal. If the appropriate tribunal does not have a doubt, the fact that somebody else has a doubt, unfortunately for the applicant or his representatives, is not of much assistance to the applicant.
These tribunals are quite independent. Although I find I am spending a great part of my life in answering letters from various vexed veterans, 1 have no control over these tribunals any more than the Attorney-General would have control over the determinations of the High Court. They are quite independent of me. The only role that the Government plays is to appoint some of the members to the tribunals; other members, of course, are nominated by ex-service organisations.
One improvement which has taken place recently is that repatriation boards and entitlement appeal tribunals are now giving the reasons for their decisions. This does make a considerable improvement in the position. Any veteran who feels that the decision in his case was not appropriate, particularly a decision by an entitlement appeal tribunal board, can base his appeal now on some substantial grounds or make a fresh application if he does obtain new evidence. This is the most appropriate way that I or this Government can visualise- and I think members of the previous Government would agree that this is the most appropriate way- in which the question can be tackled. As everyone is aware Mr Justice Toose is at present inquiring into all aspects of the repatriation system. I do not have any doubt that when his report is tabled there will be some reference made in it to these matters and it may well be that His Honour will be recommending some manner in which the existing system can be improved. If so, after consultation with the relevant ex-service organisations the Government may well, subsequent to his report, take some steps to amend the Act.
– My question is directed to the Minister representing the Minister for Education and Science. What is the position in relation to donations to building funds of private schools? Will these donations be allowable tax deductions in future? If not, is this not another move in the Government’s discrimination against independent schools?
-The honourable senator directed his question to me as the Minister representing the Minister for Education and Science. I remind him that I am the Minister representing the Minister for Education and that Senator Wriedt is the Minister representing the Minister for Science. The honourable senator’s question referred to building funds and I assume that he is referring to donations to building funds being allowed as taxation deductions. He asked what is the situation at present. At the present time those donations are allowable as taxation deductions.
– In the future too?
-He also asks what the situation will be in the future. All I can say to the honourable senator is that that is a matter of Government policy which has to be determined.
– My question is directed to the Minister representing the Minister for Labor and Immigration. Following the visit of Mr Clyde Cameron, the Minister for Labor and Immigration, to Brisbane last weekend for discussions with Brisbane’s Lord Mayor and Mr Cameron’s achievement, which was a feather in his cap, as the architect of a scheme which will provide over 1000 jobs for unemployed workers in Brisbane, can the Minister give any indication of the extent of the various Regional Employment Development scheme proposals for Brisbane? Can he say how soon employment will be available?
– It is true, as Senator McAuliffe said, that there was a major implementation of the Regional Employment Development scheme as a result of talks between Mr Cameron and the Lord Mayor of Greater Brisbane, Alderman Jones. The value of the proposals will be about $15m. This amount will be used to carry out projects which will include recreation facilities, reafforestation, foreshore improvements, work on Mount Coo-tha botanic gardens complex, relief draining, upgrading of traffic and road signs, paving, kerbing and other works. As everybody knows, these are very valuable works. The RED scheme has been of great advantage to many areas of Australia, including my State. As I mentioned only last week- Senator Jessop is familiar with this- the value of the works undertaken in Port Pirie alone is nearly Sim. I return to Senator McAuliffe ‘s question. It is anticipated that there will be employment for a total of 1000 people as a result of these projects being undertaken. Presently, and instantly there is employment for a number of women and also school leavers.
– I direct my question to the Minister for Agriculture. I refer to the severe economic problems confronting the viticulture and brandy industries arising from a reduction of 19 per cent in local sales of the Australian product for the 12 months to the end of November due to the steep increases in excise duties imposed in the 1973 and 1974 budgets, a steep rise in the consumption of imported brandy and the adverse effects on financial liquidity positions of manufacturers of the new taxation procedures in respect of stock valuation. Is the Minister aware that these factors, adverse to both the wine and brandy industries, are causing great concern among grape growers as to the ability of the industries to absorb grape production in the coming vintage? Is the Minister aware that currently an estimated 600 to 800 tonnes of certain varieties of grapes are begging placement in South Australian wineries? What steps are being taken by the Government to meet this very serious situation in the grape growing and wine and brandy industries?
– In company with Dr Cairns I met a deputation in Canberra last week of representatives from the Australian Wine Board, the Federal Grape Growers Council of Australia and the Wine and Brandy Producers Council of Australia. The representatives of those organisations placed before us very much the problem that Senator Laucke has outlined. We did undertake to consider seriously and, I think favourably, certain proposals that they put to us, but I am not yet in a position to say specifically that the Government has accepted them. I think it is fair to say that the Government will accede to one, possibly two, of the rather critical suggestions that they made concerning stocks and one or two other matters. I would hope that before the end of this week or possibly early next week we can make an announcement as to what the Government proposes to do.
It is quite true that this is a serious problem. It is not brought about entirely by the taxation decision of the 1973 Budget, although admittably this has been a factor. It should be borne in mind also that the Government was prepared to relax the 3-year phase-in program to a 5-year phase-in program last year. That assisted the industry. Nevertheless there is at the present time an overproduction problem and the Government recognises that. I would hope that within a week we will be able to make an announcement as to what further steps we propose to take to alleviate that problem in South Australia.
– I wish to revive a question, directed to the Minister representing the Treasurer, which I asked last July. Will the Minister ask the Treasurer whether he will give serious consideration in the Budget to enabling taxpayers to claim as a tax deductible item fees for the use of ambulances as these fees can and in many cases do impose severe financial hardship on an injured person and/or his or her family?
– This matter has been raised before. I am not in a position to say what the Treasurer’s views are specifically on this subject, but I shall certainly refer the suggestion to him.
– I direct a question to the Minister for Manufacturing Industry. Prior to his becoming a Minister or since he has become a Minister of the Crown did the Prime Minister ask him to make, and has he made, a declaration in writing of his personal pecuniary interests?
– Is the Minister for Agriculture aware that the vote of the Australian commissioner at the 1974 International Whaling Commission meeting is recorded as ‘yes’ on a vote to set the Antarctic Sei/Bryde’s whales quota at 4500 with 3 area divisions and that the vote was lost in favour of one to set the said quota at 4000 for which the Australian commissioner also voted ‘yes’? Can he inform the Parliament why the Australian commissioner initially supported the higher quota?
– There is a long and involved history to this question of imposing quotas on the taking of whales. I recall that after the conference when the officer referred to from my Department, Mr Bollen, had returned to Australia I gave what I thought was a very detailed answer about what transpired at the International Whaling Commission’s meetings. I now have to rely on my memory of what took place 12 months ago. I am not going to be able to say whether he voted specifically one way or the other or how many votes were cast one way or the other. Essentially, the Australian Government took the position that there should be the maximum protection and conservation of whales. It was on the Australian delegation’s initiative, seconded by the delegation from the United States of America, which was, in fact, one of the strongest conservation lobbies at that meeting that the matter was referred back to the Scientific Committee of the International Whaling Commission to see whether better methods of conservation of whales could be introduced. That amendment was carried. I think this is where the confusion may arise: The Australian delegation did not support an increase in the taking of whales; it did support- it initiated, in fact- a better system of conservation. That system has been adopted. I must make the general observation that even if Australia were to opt out entirely of taking whales- our quota this year is comparatively small; it is approximately 1000 whales- the Russians and the Japanese would take them. There is no solution to the problem of conserving whales by one country simply opting out of taking them, because other countries will take them. The Russians and the Japanese are far and away the biggest takers of whales.
At present the sperm whale particularly is not being over harvested. Again I am speaking from memory, but the estimated population of sperm whales is well in excess of a quarter of a million whereas the quota for sperm whales at present is approximately 10 000 or 12 000. In a general sense I think the International Whaling Commission is keeping a rigorous control on conservation. That control has been tightened up as a result of the initiatives taken by the Australian delegation.
– I direct a question to the Minister for Manufacturing Industry. No doubt the Minister has seen that the recent figures which show the Australian production of items by which we judge business activitythings such as electric motors, bricks, television sets and cloth, among others- during January went into the sharpest decline of our present recession. In other words, we are still seeing a severe slump developing in the economy and can even see this slump accelerating. Is the Minister aware that such a serious drop in production indicates that we have not yet approached anywhere near the bottom of the present recession? Will the Minister agree that it indicates that in the foreseeable future unemployment will continue to increase from its present dreadfully high level?
– I know that the honourable senator is watching very closely productive trends in the country, but he is not watching them so closely as to have noticed than an identical question was asked of me yesterday and that I gave a reply to it. In case he finds some difficulty in getting hold of yesterday’s Hansard I will give him the gravamen of my statement of yesterday which was that the statistics for the month of January do show that there was a fall in production right across the board. This was due largely to seasonal factors, including the summer close down of factories and the effects of the New South Wales power dispute. I suggest that to assess the trend in production one would normally refer to the seasonally adjusted figures, but on this occasion they underestimate production because the introduction of 4 weeks annual leave changed the previous seasonal pattern of production.
I conclude that while factory production fell off considerably in January- there is no doubt about that- one must await the February figures for an accurate indication of the trends. The Government has moved already, as Senator Townley undoubtedly would know, to restrain imports and to maintain production in more severely affected industries such as the textile and motor vehicle industries. I am unable to say whether there will be a further increase in unemployment. I hope that there will not be. I hope also that I did not detect any note in Senator Townley ‘s voice indicating that he hoped there would be an increase in unemployment.
– I believe the Minister for Repatriation and Compensation is aware that a number of veterans who were involved in war time experiments with poison gas are concerned still about their entitlements to repatriation benefits. Has the Minister received many inquiries about this from veterans? Will he outline the compensation that is available to them? Does the Department of Repatriation and Compensation have any evidence that these experiments were conducted? If so, where and how?
-The Department of Repatriation and Compensation does not itself keep records of military activities, whether they be military actions or experiments with mustard gas. These records are kept by the Department of Defence. It is quite clear, and the Department of Repatriation and Compensation accepts the fact, that experiments were carried out with gas during the Second World War. They have been quite well documented in a book which was recently published, called: ‘Australia in the War of 1939-1945: The role of Science and Industry’. The Minister for Defence, Mr Barnard, said only recently that some 400 Australian servicemen were subject to experiments with mustard gas in the Second World War. I have publicly said that if any veterans claim to be suffering from any disabilities resulting from such experiments they ought to make applications to the relevant Deputy Commission for Repatriation in the State or Territory in which they are living. So far some 15 applications have been received by my Department.
Naturally, in accordance with the Repatriation Act, in order for the veterans who have engaged in these experiments to be eligible to receive benefits they have to be able to establish that they are suffering some present disability. The fact that they may well have suffered anguish, pain or other inconvenience during the period of the experiments does not, unfortunately perhaps, allow them to receive benefits under the Act, but if they can establish that they are suffering from some present disability or disadvantage as a result of those experiments they are entitled to receive repatriation benefits. I am afraid there is very little I can add. There are records apparently in the possession of the Department of Defence. I should imagine that all these matters are verifiable. In fact I have spoken since this matter was first raised to a number of veterans who have told me that they personally took part in these experiments. I do not think that there should be any insurmountable problems in the way of anyone who does suffer as a result of those experiments from obtaining a proper entitlement from the Department of Repatriation and Compensation.
-Did the Leader of the Government in the Senate indicate to the Senate yesterday that unemployment in the textile industry was not entirely due to Government tariff policy? It is a fact that those unemployed by Government action in the textile industry are entitled to 6 months unemployment benefit at their previous full salary? Are they not paid the full salary because the Government admits that its tariff policies have created serious unemployment in the textile industry?
– Payments to workers in the textile industry as a result of their being displaced because of the Government’s policy decisions are no different from those made to anybody else in any other industry, for example, the motor vehicle industry. The workers are entitled to 6 months payment of their average earnings in the previous 6 months pending their finding alternative employment. The whole thrust of the program was to ensure that those workers who have been displaced as a result of these Government decisions are guaranteed that income for a 6-month period. The position of the textile worker is no different from that of any other displaced worker. It is not an illustration of the failure of the Government’s policy in the tariff area. We knew full well, as has been said on many occasions, that these effects would be felt by certain industries. We took steps to ensure that those who were displaced would be protected, and they have been protected in a manner which I think it is safe to say has been unique in Australian industrial relations.
– 1 direct my question to the Minister for the Media. Is it a fact that television ratings are important to stations in order that thay may assess public trends from the information obtained? Is it proposed to conduct fewer television surveys in 1975? If so, what alternatives are visualised?
– It is a fact that surveys are regarded by the television industry as important indicators of the public taste in television. Therefore the results of surveys are taken cognisance of particularly by those who engage in commercial advertising on radio and television. I am given to understand that the report about there being fewer surveys conducted is correct with respect to the Sydney and Melbourne viewing areas and also to a less extent to Newcastle. In the past surveys have been conducted much less frequently in the other major cities than they have been in Sydney and Melbourne. I am given to understand that the number of surveys to be taken in other capital cities this year will remain unchanged. Last year in Sydney and Melbourne 9 surveys were taken covering 36 weeks out of the fifty-two. The information given to me and my Department is that this year those nine will be reduced by one and there will be 8 surveys covering 32 weeks instead of thirty-six.
True it is that the reduction has caused me and my Department some concern. We do not regard it to be in the best interests of the viewing public, because it seems to have been past practice that in the non-survey periods a greater number of repeats or less favourable programs are put on. However my Department is now looking at a parallel system of audience surveying, and I am seeking a report from the Department on that matter. I have also asked my Department to discuss the matter with the Australian Bureau of Statistics to see whether the Bureau can assist in formulating some consensus of television viewing habits, although I am given to understand that there are staff problems in that connection.
-The Minister for Agriculture will recall stating last week that the Premier of Queensland had not made substantial offers to the Federal Government on the matter of joint State and Federal help to overcome the crisis in the beef industry. Is the Minister aware that Queensland has made available $10m at 2 per cent interest to beef producers in that State? Will the Minister agree that producers, particularly in central, northern and western Queensland and in the Northern Territory, who cannot diversify must receive adequate finance and low interest rates in order to survive the present crisis? Will the Minister consider making funds available at lower interest rates to support the Queensland scheme so that more producers can be helped to stay on their properties?
-The fact that the Queensland Government has undertaken to implement an assistance scheme of its own does not negate what I said last week. I repeat that there has been no such invitation. If the Queensland Government decides to go it alone in a scheme of its own that is up to Queensland, as it is to any State government. What I was saying last week was that I believe the most effective way in which we can help the industry is by coordinating the efforts of both the Federal and State governments. The Prime Minister is currently in communication with State Premiers, as I have indicated in the last couple of days, seeking their co-operation so that the burden does not fall on the States any more than it does solely on the Australian Government. It is quite true that the interest rates at which loans are being made available by Queensland look attractive on the surface. But one ought to consider the fact that none of these people will become eligible until such time as their claims can be established. First they have to be refused finance by the Commonwealth Development Bank. In fact essentially it is an extension of the rural reconstruction arrangements which, by means of Commonwealth finance, are made available to primary producers in Queensland and other States at 4 per cent interest anyway. Politically it probably looks good, as I say, but even when the Australian Government made interest-free loans available to Queensland under the flood relief program last year the Queensland Government saw fit to charge 4 per cent and 5 per cent by means of some sort of service charge. This was on money which we were giving to Queesland interest free. So it all reads well on paper but if one looks under the surface it is not so impressive after all.
– Is the Minister for Manufacturing Industry aware that consumers are experiencing difficulties in purchasing a wide variety of goods, that large retail stores have allowed stocks to be depleted, and that consequently consumer durables, timber, nails, items of drapery and other locally manufactured goods are in short supply? In view of the unemployment position, can the Minister explain why manufacturers and/or retailers are not combining their efforts to provide consumers with a choice of goods? Will the Minister have his officers carry out a survey in the market place to verify these complaints and examine whether manufacturers and retailers are involved in some plan, action or conspiracy to reduce production and distribution in an effort to exacerbate current economic disabilities and embarrass the Australian Government?
– I have heard such rumours. I do not know whether they are just rumours or whether there is substance in the claims. If there is any truth in such rumours I am sure honourable senators opposite would be as disturbed as they appear to be by the question. As suggested by the honourable senator I will ask my Department whether a survey can be conducted to discover whether there is any truth in such rumours and what is the explanation for such a condition if it exists.
– I ask the Minister representing the Minister for Social Security whether the Commonwealth subsidy for private hospital patients remains at $16 a day plus the long standing $2 subsidy, a figure which has not been increased since 1971. At that time the $16 represented the larger part of the cost whereas today it represents far less than half the cost. Will the Minister take action to correct this inconsistency?
-Senator Sheil should realise that I am the Minister representing the Minister for Social Security and that there are no actions I could take to correct this alleged and possibly well founded claim of inconsistency. All I can do is refer the matter to the Minister for Social Security and let Senator Sheil have a reply with my usual promptness.
-Has the Minister for Agriculture seen reports in which the Queensland Premier claims that imported canned meat is injuring the Australian meat industry? Is there any truth in this statement?
-I think the Queensland Premier has been exaggerating again, not that that is anything new. Australia has been importing canned meat over the years. Imports in 1971-72 certainly were higher than they were last year. A statement was made subsequently by, I think, the Chairman of the Australian Meat Exporters Federal Council, in which he said that the imports of canned meat were insignificant. They are insignificant. I do not have the figures with me now but I looked at them two or three weeks ago and they were so marginal as not to have any impact on the present meat position in Australia. I am sure that my colleague the Minister for Manufacturing Industry, who has direct responsibility for this matter, is keeping a very close watch on it anyway.
-I ask the Leader of the Government in the Senate whether he recalls that the Remuneration Tribunal Act provides that the Tribunal shall inquire into and determine, among other things, parliamentary allowances annually. Did the Minister notice this morning the reference in the ‘Daily Telegraph’ stating that it is likely that members of Parliament will receive an increment of $200 a week in July? Will he be as surprised as I am to be informed that I telephoned the secretary of the Tribunal this morning to ascertain whether the Tribunal had advertised for submissions and was told that it did not intend to do so? Will the Minister take action by way of communication or, if necessary, regulations under the Act to ensure that any determination by the Tribunal is preceded by proper public inquiry?
– If that report was in the newspapers this morning it is one of the nice things which I happened to miss. I do not know what the current position is on this matter and I could not say whether the Press reports are correct. In relation to Senator Wright’s inquiry of the Tribunal, I would have assumed that the Tribunal would be taking evidence again this year, as it did last year, before any recommendations were made to the Government in respect of this matter. But this is not within my direct responsibility; it is a matter for the Prime Minister or for the Special Minister of State. I shall re-direct the question to the Prime Minister.
– I direct a question to the Minister representing the Minister for Labor and Immigration. In view of the no man’s land which exists between Dr Everingham and Mr Clyde Cameron in relation to the surveillance of industrial safety in the Northern Territory, could we have early clarification of the final guidelines having regard to industrial hazards which could face workers if the Ranger mine commences uranium extraction? I am emphasising the radon hazard.
– I have heard Senator Mulvihill refer to this matter before. To my knowledge neither Mr Clyde Cameron nor Dr Everingham have recently met to consider the position. I shall ask both of them whether they will consider the question which Senator Mulvihill has asked me.
– I would have to refer such a question to the Acting Minister for Foreign Affairs, namely, the Prime Minister. I cannot say whether he proposes to make a statement additional to those which have been made in answer to questions both here and in the House of Representatives. That will have to be a matter for his wisdom, depending on whether he considers such a statement to be necessary. I shall refer the question to him.
-Can the Minister representing the Minister for Social Security confirm that benefits will be payable under the Government’s new Medibank health scheme for people who attend an optometrist to obtain spectacles? In what circumstances will these benefits be paid? Will they be available to consumers in states such as Western Australia where the State Liberal Government has indicated that it will not support Medibank?
– I shall answer the last part of the honourable senator’s question first. I do not think that different States will be affected in the provision of medical services of this kind. Unless I have seriously misunderstood the whole matter the effect of the States’ refusal to take part in Medibank relates to the hospital provisions and not to the medical provisions. It is proposed that the Medibank service will provide for fee for service optometrical consultation for all citizens in the Australian community. The Government is pleased to be able to say that it has had very great co-operation from the Australian Optometrical Association in dealing with this matter. In fact, the Australian Optometrical Association could well be taken as a model by some other professional organisations with which the Government finds itself compelled to deal.
I should like to congratulate Senator Jessop for the part that he undoubtedly played in assisting the Labor Government ‘s policy to be adopted by his Association; his attitude is in stark contrast to the actions taken by some of his colleagues in the Australian Medical Association. The benefits which will be available for optometrical services under the Medibank scheme will be the payment by Medibank of 85 per cent of the negotiated fee, with a maximum patient payment of $5 for any service. Patients will be entitled to benefits for 2 separate items- the initial consultation and a subsequent consultation in any 12-month period. Benefits will be available once in any 3 years for the cost of consultations for contact lenses where it is established that the patient’s medical condition requires the prescription of contact lenses. The Government is taking steps to ensure that optometrical services will be available to people who are living in isolated communities.
Amendments which are proposed to be made to the Health Insurance Act will establish an optometrical services committee of inquiry to inquire into the fees and the mode of practice of individual optometrists. Another body which will be established, the optometrical services review tribunal, is proposed for the purpose of considering appeals by optometrists affected by the Minister’s determination on the recommendation of a committee of inquiry. The Government believes that optometrical services are probably just as important as any other branch of medical services which are available and it is very pleased to be able to say that through a cooperative effort between the Government and the professional body of optometrists, the Australian Optometrical Association, it has been able to achieve this very satisfactory result.
– My question is addressed to the Minister representing the Treasurer. There is undoubtedly some confusion and difference of opinion about the depth of the industrial decline in Australia. Has the Treasurer’s attention been drawn to the statement by the Melbourne University’s Institute of Applied Economic and Social Research that the real growth rate in Australia for the year ending June 1 975 will be minus 5 per cent? Can he confirm that? Does he understand the implication of that result for the whole of Australia and its manufacturing industries if that is the true forecast?
-No, I am not able to confirm that and I doubt whether anybody else would be able to confirm it. It is obviously an opinion that has been expressed by someone who regards his views as being worthy of publication. I am not able either to confirm or deny it.
– I direct my question to the Minister for the Media. In view of the fact that colour television transmission will become the order of the day as from this weekend, can the Minister say what precautions have been taken by the Government to safeguard intending buyers of colour television sets from the possibility of being exploited by false advertising in respect of the durability and quality of certain makes of receivers?
– The question is one more for my colleague the Minister for Science, Mr Morrison, who is responsible for the setting of consumer standards under the Australian Government requirements. However, I can tell the honourable senator that officers of Mr Morrison’s Department have been in contact with the engineers of the Australian Broadcasting Control Board about setting certain standards for colour television sets. As a result of those discussions taking place some time ago- I think in about August or September of last year- a publication was produced by the Australian Government through the Australian Government Publishing Service drawing to the attention of the public certain things that should be looked for when contemplating the purchase of a colour television set. That publication is still available for distribution. The publication is on sale from the Australian Government Publishing Service. I understand that it has been well received by the Australian community. The assessment of standards is the responsibility of my colleague, the Minister for Science.
– Is the Minister representing the Acting Minister for Foreign Affairs aware of the strong protest directed to the Minister for Foreign Affairs and to other persons by Mr Frank Galbally, an experienced Melbourne lawyer, relating to the recent trial and gaol sentence in Singapore of Tan Wah-Piow, the 23-year old president of the University of Singapore Students Union? Do inquiries by the Minister indicate whether the reported criticisms of the trial as ‘political persecution’ and ‘a political frame up’ are justified and that, among other complaints, the student leader was browbeaten by the trial judge and denied free access to his witnesses who had been deported before the trial? Does the Australian Government propose to make any representations to the Singapore Government about these serious allegations in respect of civil liberties raised by this Australian observer?
-I ask the honourable senator to place his question on the notice paper.
– I understand that the publication of the booklet ‘Australia in Facts and Figures’ has been discontinued since issue No. 120. The announcement stated that ‘much of the information contained in “Australia in Facts and Figures” is now available in other sources’. Does the Minister for the Media suggest that the publications presently produced by Government agencies, with blatant Party political objectives, such as the ‘Australian Government Digest’ are comparable with the compact and factual booklet of statistics which was previously produced by the Australian Information Service? If so, which publications would he specify for Australian and overseas use where facts are required?
Senator DOUGLAS McCLELLANDHaving regard to the cost of the preparation, publication and distribution of the publication Australia in Facts and Figures’, it was decided, because of economic circumstances, to eliminate the production of that publication. It was one more in the nature of a statistical booklet and, I understand, was published about 6 months after the statistics it incorporated had become available. In other words, it might be published in December and would provide statistical information only up to the preceding June. Because of the time lag between the initial receipt of those statistics and the making available of them by the Bureau of Census and Statistics to my Department for publication and also because a great deal of the material was available in other publications printed and published by the Australian Government, it was determined that Australia in Facts and Figures’ should no longer be continued.
The honourable senator asks what other publications there are that take the place of ‘Australia in Facts and Figures ‘. She has already referred to a digest that is published by my Department. The honourable senator suggests that it is a propaganda sheet. I refute that suggestion immediately. I say that it is a digest of information of Australian Government activities and of activities relating to this Parliament. That publication is now being updated and being transferred from a quarterly digest to a weekly digest. Additionally, another publication ‘Australia in Brief which has been published for some time is still available. Another publication is one known as ‘Australia’ which under the previous Government was printed in New York. By my direction, the printing of that publication was transferred from New York to Australia. It is now being produced on a quarterly basis and is available from the Australian Government Publishing Service. There might be three of four other publications of this type, the names of which escape me, but I can obtain them and provide that information to the honourable senator.
– My question is directed to the Minister representing the Minister for Health and relates to the medical health scheme. Since the amendments to the scheme were carried last December, expeditiously so as not to delay these benefits, and as these benefits apply to such things as stoma therapy with its special needs, when can we expect that these benefits will be available to those people unfortunate enough to require them?
– This is possibly more appropriately a matter for the Minister for Social Security than the Minister for Health. I am afraid that I just cannot give off hand an answer to the question Senator Bessell has asked but I will see that the question is put to the relevant Minister as quickly as possible and that the honourable senator gets an answer without delay.
– I ask the Leader of the Government in the Senate: In view of the Borrie report which greatly diminishes the expectation of population growth in Australia and in view of the great resistance of public servants in Adelaide to being forcibly transferred to the new development of Monarto, will the Government review its support of the Monarto proposition and either delay the implementation of the Monarto scheme or, more desirably, cease all support of that particularly undesirable scheme in South Australia?
– It would be a matter for debate as to whether this is a desirable scheme. There must be some caution about the findings of the Borrie report because it should be remembered that it is based on fertility rates over only the past 2 years. Consequently we should not be stampeded by what is contained in the report. Nevertheless, in the light of the Borrie report the Government will have to consider many schemes which are currently under way. They are the responsibility of other Ministers and I shall refer the specific part of Senator Hall’s question to the Minister for Urban and Regional Development.
– My question is directed to the Minister for the Media and I refer to the recent steep increase in the price of Hansard which has to be borne by its subscribers. I am not sure whether the price has already been increased or whether it is foreshadowed. Is the Minister aware that many pensioners and students purchase Hansard in order to become fully informed on parliamentary debates as it is quite impossible for them to gain sufficient knowledge of important issues through normal media channels? In view of the financial hardship which the increased cost of Hansard will cause to such people in the community, will the Minister provide copies of Hansard to students and pensioners at the old price?
-The decision to increase the cost of Hansard was made by the Government on advice from the Presiding Officers of the Parliament- the President of the Senate and the Speaker of the House of Representatives- based on a recommendation in 1971 of a joint parliamentary committee that was presided over by a member of the Liberal Party and which had on it a majority of members of the Liberal and Country parties. It has been determined that as the price of Hansard has not been increased since 1954, a period of some 21 years, action should be taken now to increase the price. The honourable senator will be aware that a very large number of daily and weekly copies of Hansard are made available to a very large section of the Australian people. Honourable senators and members of the House of Representatives are entitled to a distribution list of 50 names for receipt of daily and weekly Hansard.
I suggest to the honourable senator that if any pensioner has written to him asking for a free copy he make use of this facility and include that pensioner’s name on his free list. So far as students are concerned, the Government has determined that my Department shall arrange for a copy of all Government publications to be made available free of charge to libraries of universities, tertiary institutions and bodies of that nature. Therefore, through those library institution facilities copies of Hansard are available to any student who is unable to obtain free copies. I mention that when the Committee presented its report to Parliament it was found that the Parliament was subsidising the cost of the production of Hansard to the extent of some $400,000 a year. I understand that the subsidy has now risen to about $600,000 a year.
– I direct a question to the Minister representing the Attorney-General. I remind the Minister that Saturday, 1 February, marked the effective introduction of the Trade Practices Act. Is it a fact, as reported in the ‘Sydney Morning Herald’ on 30 January 1975, that as one effect of implementation of this Act it will no longer be possible for manufacturers of food items to offer discounts to retail stores? Discounts available up to now have included those to certain chain stores which are known to charge the lowest prices to housewives. In view of the very narrow profit margins on many groceries, is one effect of the legislation likely to be a further rise in grocery prices as a result of loss of manufacturers ‘discounts?
– I did not see the newspaper article referred to by the honourable senator, although it is a fact that the effective operative date of the Trade Practices Act was 1 February 1975. 1 am not aware of the precise effect of the Act in the way that the honourable senator suggests. I shall look at it and let him have an answer in the near future.
-Is the PostmasterGeneral aware that postal workers in New South Wales are threatening to withhold the delivery of mail to the Premier and his Government and also, apparently, to members of the Liberal and Country parties of the Parliament of New South Wales? What steps or action is he undertaking or will he take in the face of this threatened withdrawal of mail services?
– I heard part of the statement concerning this matter this morning on the radio. I suppose I should say straight off that I would have as much chance of controlling the postal workers as the honourable senator has of controlling his Premier.
– I think that you had better re-phrase that.
-I will not. I think that is the clear position. If in the first place members of the Opposition parties had been able to persuade the Premier of New South Wales to do the traditional and correct thing- some tried to persuade him- unions and other people in society would not be trying to take some sort of retaliatory action. That is the position today. I do not personally approve of either position. I would say that the whole situation could develop to a stage where the work of our Parliament could be impeded by some people. But the origin of this possible impediment lies in the action taken by one in the Liberal-Country Party movement from whom one would think we could expect better. I can only say that when action is to be taken the Government will consider what should be done in respect of both matters.
– I direct a question to the Minister representing the Minister for Labor and Immigration. Is it a fact that the Minister for Labor and Immigration, speaking recently at the Federal Conference of the Australian Labor Party, called for an increase in the migrant intake? If so, has the Government fixed a target for the current year? In the light of the references in the Borrie report and the Minister’s admission that the Government’s immigration policy is outdated, is it proposed to seek migrants with special skills rather than to place emphasis on accommodating relatives of migrants already here?
-The Minister for Labor and Immigration has not yet set in course any evaluation of the Borrie report. Senator Wriedt has already mentioned some of the factors related to that report. I think we must wait, as Senator Wriedt has pointed out, for a proper examination by the Government, the specialists and the Ministers concerned. In respect of what Mr Clyde Cameron said at Terrigal, the honourable senator might remember that one of the questions he asked me previously was whether the Government was going to attract people with the skills that are needed in Australia. One of the resolutions which the Minister for Labor and Immigration had passed is to ensure that that will be done. I think he has already acknowledged too that presently, at any rate, the source of migrants would be those areas which are recommended in that report. I do not think there have been any changes in policy but I will ask the Minister for Labor and Immigration to examine the honourable senator’s question and give a more complete answer, if possible.
-Earlier Senator DrakeBrockman asked me a question concerning the position of Australian citizens in Phnom Penh. I have some information which I believe I should make available for him. Our charge d’affaires in Phnom Penh has sent a preliminary warning letter to the 20-odd non-official Australian citizens in Cambodia, suggesting that it might be wise to consider leaving while normal travel facilities are available unless they plan to stay in Phnom Penh regardless of developments. While there is no imminent prospect of Phnom Penh falling to anti-government forces, it seems quite likely that life in Phnom Penh could become more difficult and even dangerous in the near future, with fewer daily necessities and more bombardment.
In those circumstances it was only prudent to suggest to the private Australians in Cambodia that it might be wise to consider leaving while normal travel facilities are available. The question is under constant review. Instructions have already been given to the charge in Phnom Penh allowing him the flexibility and discretion either to recommend evacuation or to evacuate should he judge the need to arise.
- Mr President, I seek leave to deal with a matter which I believe is of grave importance. It concerns my having been misrepresented yesterday in a Melbourne newspaper.
-Is leave granted? There being no dissent, leave is granted.
-I will not unduly take the time of the Senate, but in the Melbourne ‘Sun’, of yesterday, 25 February, which is a newspaper incidentally that claims an audited distribution of over half a million copies, I believe I was gravely misrepresented and that the misrepresentation bordered on the criminal. I believe it is a subtle attempt to undermine my public image as a virile and vigorous representative of the people of Victoria and of Australia generally. The article appears on page 4 under the title ‘A Place in the Sun’. It was written by a person by the name of Mr Keith Dunstan whose only claim to fame, as I understand it, is that he attempted to organise a movement known as the ‘AntiAustralian Rules Football Movement’. Fortunately for cultural purposes in Victoria he was unsuccessful. I wish to quote briefly from the article. It refers to the retirement of members of Parliament at 65 years of age. Among other matters the articles states:
Just consider what would happen if this law was enforced in Federal politics.
It went on to state:
Senator Sir Magnus Cormack is 69, Senator Lawrie is 68, Senator Ian Wood is 74 and Senator Reginald Wright, one of the most eloquent men in that august house, is 70.
Mr John Gorton will be 64 this year.
But some members are devilish cunning, they don’t give their ages in ‘ Who ‘s Who ‘.
Senator Bill Brown, of Victoria, could be a 65 candidate . . if he’s not over 65, I’ll start attending football matches.
Since that article appeared in the newspaper unbeknown to me, my office in Melbourne, my home and this morning my office in Canberra have been literally inundated with telephone calls from people who have registered concern to think that, first of all, I am in fact 65 years old. When they were told that I am not, they said: You should do something to repudiate this claim ‘. Others have not been quite so pleasant. In fact one who rang me this morning said, in effect: You so-and-so, you old such-and-such; when will you retire? I cannot in this chamber repeat the language that was used; it would be unparliamentary.
This matter is serious. My wife has been inundated with calls. She was asked when I expected to retire and whether she and I would be joining the local elderly citizens’ association. I have taken the opportunity of checking on my birth date, although I did know it was right. I happen to have with me an official passport which was issued to me in December 1973. It bears a description of me. My place and date of birth are shown as Brunswick, Victoria, Australia on 4 December 1920. I went a little further to make sure that information was accurate beyond any challenge whatsoever. I found that I was born on Saturday night, 4 December, 1920, at 1 1.30 p.m. at Nurse Boyd’s private hospital in Moreland Road, Brunswick.
I want also to make it clear to the constituents not only in Victoria but also of Australia who may be listening today that the flame of youth burns within me and on occasions with great ferocity. I propose to continue to represent the people of Australia in the same vigorous manner as I have in the past. Having placed that on record I hope that Mr Dunstan will have the decency to correct what can only be described as a gross inaccuracy and to apologise to me and to my family for the inaccuracy and for the distress which has been brought to me personally and to my family.
-I wish to make a personal explanation.
– Does the honourable senator claim to have been misrepresented?
-Yes. Towards the end of a reply to me this morning about a question concerning the present slump in our economy, Senator James McClelland intimated that the tone of my voice indicated that I hoped unemployment might continue to increase. I emphatically deny that. Nothing would please me more than to see the 300 000 people who are out of work in this country able to find employment of their choosing, particularly those already out of work and those facing unemployment in my State of Tasmania. As a senator for Tasmania where so many are out of work already, I have a responsibility to do what I can to put pressure on the Government to reverse the situation that presently exists in this country. That I will always do. I shall not let any innuendo or statement such as that made by the Minister stop me in that endeavour.
– I present report No. 1 from the Standing Committee on Health and Welfare on the continuing oversight of the report of the Senate Select Committee on Drug Trafficking and Drug Abuse.
Ordered that the report be printed.
I seek leave to move a motion in relation to the report.
-Is leave granted? There being no objection, leave is granted.
– I move:
The report of the Senate Select Committee on Drug Trafficking and Drug Abuse was tabled in the Senate on 6 May 1971. During the debate on the report the Senate resolved that the Standing Committees on Health and Welfare, Social Environment and Constitutional and Legal Affairs should continually oversight the report and recommend from time to time the further measures which might be taken to implement the recommendation or overcome the problems revealed in the report. In this report we have chosen to look at each and every recommendation of the Select Committee. We have not intended to anticipate the oversight of the other 2 Committees. We believe that a co-ordinated oversight is necessary and as a first step it is usual to look at each recommendation of the Select Committee’s report and see what has happened since 1971. We have made some recommendations on measures to implement the Select Committee ‘s recommendations. We have also drawn attention to the areas which warrant further investigation. Some of these areas would be more appropriately dealt with by the Standing Committee on Social Environment and the Standing Committee on Constitutional and Legal Affairs.
Generally there have been varying responses to the Select Committee’s recommendations since the report was tabled in May 1971. We were impressed by the thorough and comprehensive approach to the labelling and advertising of drugs. It is hoped that the State governments will fully endorse and implement the proposals. We have suggested that the areas of the Select Committee’s report on the living environment, psychiatric and counselling resources for children, cannabis research and legislation on cannabis, treatment and rehabilitation legislation, and drug abuse research required further investigation. We suggested that the living environment and legislation could be more appropriately dealt with by the Standing Committee on Social Environment and the Standing Committee on Constitutional and Legal Affairs respectively.
Finally may I place on record the Committee’s appreciation of the work of the staff, namely Mr Rex Hoy, the Secretary of the Committee, Miss Hazel Church, the research officer, and the stenographers who have assisted from time to time in the work of the committee. Their work has been most helpful and is recognised and appreciated by the Committee. I seek leave to continue my remarks.
Leave granted; debate adjourned.
Debate resumed from 1 9 February on motion by Senator Wriedt:
That the Bill be now read a second time.
– The opposition will not oppose the second reading of this Bill. It is the second of 2 Bills which the Government has presented dealing with appeals to the Privy Council from Australian courts. The first of the Bills was before the Senate yesterday. That Bill was defeated. The Opposition took the attitude that because that Bill was concerned with appeals from Supreme Courts of the States to the Privy Council it was a matter in respect of which the Commonwealth had no jurisdiction or legislative authority. We felt that, desirable as it was that the Privy Council should be the final court of appeal in Australia, appeals from State Supreme Courts ought to be abolished, if they were to be abolished, as a result of co-operative action between the States and the Commonwealth or by co-operative action between the States and the English Parliament. Ultimately and desirably, we in the Opposition felt that the appeals should be abolished, if they were to be abolished, by decision of the Australian people at a referendum.
We emphatically oppose the course of action of this Government in seeking by its own unilateral act to ask the English Parliament to pass a law which would remove a matter over which the States had certain authority and in respect of which the States ought to have been consulted. We in the Opposition are pleased that the Senate rejected that Bill and left the way open, if the Government will only utilise the course, of consulting with the States and involving the constitutional convention in the resolution of this problem.
The Bill we have before us today is a much smaller Bill and it deals with appeals which go from the High Court to the Privy Council. That is a matter over which the Commonwealth Parliament is given legislative authority by secton 74 of the Constitution. Putting it shortly, the Commonwealth Parliament has the power to limit the matters in respect of which an appeal lies from decisions of the High Court to the Privy Council. It is a power which has been exercised previously; it is a power which was exercised by the Liberal-Country Party Government in 1968. I mention that because it ought to put an end to the constant allegatons which the Labor Party makes that the Opposition parties want to preserve this appeal and really are not concerned to maintain Australia ‘s independence. It ought not be forgotten- the record establishes it- that it was a Liberal-Country Party Government which limited the appeals to the Privy Council. That Act was passed in 1968. It was passed at a time when the limitation was an effective limitation.
What did the 1968 Act do? It ensured that it would be impossible for appeals to be taken from the High Court to the Privy Council in matters which originated in the High Court, which originated in any Federal court or which originated in a territory court. It also made impossible the taking of appeals to the Privy Council where the questions at issue were the applicaton or the interpretaton of the Constitution or of Commonwealth or territory legislaton. In short, appeals from the High Court on decisions which had any Federal content whatsoever were barred.
Of course, there are some appeals which still can be taken from the High Court. They are appeals which have absolutely no Federal context. It is with respect to those appeals that this Bill is concerned. The Bill desires to remove the right of appeal in those matters. The Opposition has its doubts about either the desirability at the present stage or the constitutionality of this particular provision, but it does not regard those doubts as having sufficient weight to warrant opposition to this measure.
In the first place let me explain the grounds on which the Opposition has these doubts. At the present time when there are appeals from the High Court to the Privy Council in matters which have no Federal component there are practical difficulties or anomalies because there can be an issue which involves matters of interpretation of Federal law as well as matters which contain no Federal aspect. To illustrate, if a person is suing a company in respect of money which is due the cause of action might be for the value which is due because it is the amount payable for goods which have been sold or for services which have been rendered. That is a course of action which, as lawyers would readily appreciate, has no Federal component. But there may have been paid a cheque which has been dishonoured, and whether or not the cheque has been properly dishonoured or whether the amount which is stated to be payable on the cheque is the appropriate amount to be paid involves Federal law because it is an Act of this Parliament which gives validity to negotiable instruments of which cheques are one. There are practical problems which could arise in regard to those matters. There are practical problems in the area of patent law in regard to actions for breach of patent or for passing of actions. In one case there is a Federal component because there is Federal legislaton, namely the Patents Act, which is involved, and in other ways the action is part of traditional common law and does not involve Federal legislaton.
There is no question whatever that the passage of this Bill will remove those doubts by excluding altogether appeals in those matters from the High Court to the Privy Council. But it must be said that in those matters which have no Federal component the appeal may go from the Supreme Court directly to the Privy Council. We can have 2 streams of authority which co-exist. There will be a stream of authority which flows through from the Supreme Court to the Privy Council and a stream of authority which flows through from the Supreme Court to the High Court. Whether in the new circumstances, the High Court will regard the Privy Council’s decisions in those matters as having imperative authority is a question which undoubtedly the High Court will have to resolve in the future.
– Is that a desirable state of affairs?
– I think that the High Court ought ultimately to be able to make the decision. Undoubtedly the High Court will make the decision. But there will be a period of time, as there must be, in which litigants and interested persons will sense that there is a problem as to whether the decision of the Privy Council or of the High Court will prevail in an area where there are conflicting decisions. Up until the present time the Privy Council has been the apex of the legal system. All courts adhering to the doctrine of precedence have accepted the Privy Council’s authority. One senses that that will differ in the years ahead. One may regret the passing of that uniformity or application of the doctrine of precedence which has characterised the law of the British Commonwealth. But that is one of the prices which I think we are prepared to pay for the evolution of a national legal system.
I have mentioned that there will be the anomaly that appeals from the High Court in matters which have no Federal component will be limited; yet an appeal may go directly from the State courts in these same matters to the Privy Council. This is not a matter which, in the view of the Opposition, would warrant rejecting this measure. As I have said, the present Bill removed the right of appeal in all existing nonfederal matters which may be taken from the High Court to the Privy Council. It enacts that the only appeals which hereafter may be taken are appeals from decisions given by the High Court in proceedings which commenced before the date of the Act. That has the effect of ensuring, over a passage of years, that there will be, in effect, no appeals available from decisions of the High Court. If this Bill becomes law the only appeals from the High Court which may thereafter be taken to the Privy Council are those appeals which are from decisions made before this Bill became law. As I have suggested there is a point of time in the future when those matters will cease to be appealable. Secondly, there are the inter se questions as to the constitutional powers of the Commonwealth and the States which the High Court may certify as properly appealable to the Privy Council.
This is a quesion upon which the High Court is given a discretion by the Constitution, and it cannot be removed. It is generally accepted that such a certificate is unlikely ever to be given. I think on the only occasion in the last 50 years in which a request has been made to the High Court, it declined to give such a certificate. I think it is generally accepted that the High Court is unlikely to accede to any submission that a certificate be granted. I think it is arguable that the proper interpretation of the words in section 74 which give the Commonwealth Parliament power to limit the matters in relation to which leave to appeal may be sought involves that there be some residue of matters in relation to which an appeal must still lie. It is a fine legal point and it may be that the High Court would have to resolve on that question at some stage in the future. But I think those who want to argue the point have their right to do so and it is for the High Court to make the decision in the future. It is not for this Parliament to take the view in this area that such a point ought to warrant opposition to this Bill.
The Opposition recognises that with the passage of this Bill there is a culmination in the affairs of this country with regard to the Privy Council appeal which is epoch making. It is so often forgotten but it is a fact that when the Federation was sought to be established in 1900 the view of the founders of the Constitution was that there ought not be be any appeal to the Privy Council. It is strange to think after 75 years that that issue was the issue of contention between the delegates who went from the Australian colonies to Westminster and the representatives of the British Parliament who consulted with them at that time. The resolution of those difficulties resulted in the compromise which is now section 74 of the Constitution, and the powers which were conferred upon the Commonwealth Parliament under secion 74 are now fully utilised in the only way in which one can have an exclusive legislative fulfilment. It is an interesting facet that we are here at the time when the events which started in 1900 have reached their culmination. The Opposition supports the Bill.
– I do not propose to join issue with the Deputy Leader of the Opposition in the Senate (Senator Greenwood) as to the Opposition’s general attitude towards appeals to the Privy Council. We thrashed that out yesterday when discussing the Privy Council Appeals Abolition Bill. I reiterate that it is the Government’s aim to make the High Court the final court of appeal in all litigation in Australia. I content myself with expressing the Government’s appreciation of the fact that the Opposition will not stand in the way of the passage of this Bill, which goes some of the way towards achieving the Government’s goal in respect of the High Court.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 30 July 1 974, on motion by Senator Murphy:
That the Bill be now read a second time. (Quorum formed).
– Addressing myself to the Superior Court of Australia Bill, I remind the Senate that the Bill has been before this chamber on a previous occasion. It was then opposed by the Opposition and we oppose it today. It represents a major mistake bordering on a blunder as far as the conception of judicial work in Australia is concerned. It arises out of the fact that in erecting courts, our Constitution copied without sufficient consideration, it is suggested, the system from the American Constitution providing for a dual system of courts, one system the Federal courts and the other the State courts. I think it is acknowledged by everyone that the circumstances surrounding the American States in the 18th century when their Constitution had to mould the different courts of the various States together were very different from those in Australia. I would suggest that the overwhelming weight of opinion today in this very complicated and recondite field, but having major practical application, is that Australia should not have a dual system of courts and that it should have one system of courts to administer Federal and State law, irrespective of the source of the law.
It is interesting to note that in McGowan’s book ‘The Organisation of Judicial Power in the United States ‘ he states at page 1 3:
While several federal constitutions have authorised a full system of inferior federal courts, only in the United States has such a parallel system been actually established. In view of the expense involved, as well as possible duplication and confusion of jurisdiction as between these federal courts and the state courts, the burden is on those who would favour such a scheme.
It was insufficiently noticed when the Australian Constitution was erected that we did provide a means of enmeshing the 2 systems of courts in 2 links which do not exist in the American Constitution. Firstly, the High Court was given general jurisdiction to entertain appeals from all Australian courts, irrespective or whether they were
State or Federal, and having an appellate jurisdiction in respect of the jurisdiction of the State courts gives the High Court ample opportunity to supervise and co-ordinate the development of the law which operates in State courts on State matters. Secondly, a provision was introduced into our Constitution, which was not in the American Constitution, which enabled this Parliament, when needing jurisdiction to enforce the Federal laws, to invest that jurisdiction in the State courts so that the State courts could amply operate as agencies to administer the Federal law in addition to the State law which was their inherent responsibility. Therefore, the High Court of Australia was able to co-ordinate the administration of justice and the State courts were enabled to take their part in each field, both in their original State jurisdiction and in the invested Federal jurisdiction.
It has been, I think, a tribute to the sagacity of succeeding Federal governments that they have maintained the operation of those 2 provisions and have used the power which they have to create Federal courts very sparingly. One finds, therefore, that Federal law has generally been developed by investing the jurisdiction necessary to enforce it in the State courts. There are some exceptions, bankruptcy for one. The Industrial Court, a very special jurisdiction, is another. But just to show how far the view is being taken on this occasion by the Government, it is, as I understand the Bill that I am opposing, at present the intention not merely to invest matrimonial jurisdiction in the Superior Court but to invest it in that court exclusively. One only has to ponder that proposal in its practical application to see what a grave mistake is being proposed.
I should state that no doubt it will be urged by the proponents of the Bill that this Bill had its analogy in Bills which were previously suggested to the Parliament by Sir Garfield Barwick, Mr Justice Bowen, MrT. E. H. Hughes and Mr Snedden among other Federal Liberal AttorneysGeneral. But a succession of those AttorneysGeneral individually came to a conclusion adverse to this proposition. It was a signal contribution that Senator Greenwood made when he was Attorney-General to come to a final conclusion that a proposal of this sort was damaging in the extreme to the administration of justice in Australia and he announced to the Parliament that the Bill was to go to the waste paper basket. That is where the Labor Party in its initiative and grand capacity for reform has plucked this Bill from- the off-scourings of the Liberal Party waste paper basket.
The Bill seeks to set up a comprehensive Federal court that will extend throughout the whole area of Australia and take jurisdiction in original matters of a very complex nature. But to show the intention that is behind the Bill to make this court a monster, one has only to read the divisions into which it is to be separated. According to this Bill there will be 6 divisions in the original jurisdiction. These are the Administrative Division, the Bankruptcy and Insolvency Division, the Commercial Division, the Family Divisionthis new distorted term that is being used to try to bemuse people into thinking that current legislation is for the promotion of the family, whereas of course it is a camouflage for its destructionthe General Division and the Industrial Division. Honourable senators can see the breadth and depth of jurisdiction that is proposed to be invested in this court.
It is my proposition that the original jurisdiction in this court stemming from all the Federal legislation that is placed on the statute book today will be so far reaching and so overriding that this court as an important unit in the federal system will within 50 years, I predict, displace the State Supreme courts and the State courts systems so that they relatively speaking will be insignificant. Consonant with that will be the rather ambitious idea of the present Prime Minister (Mr Whitlam) who told his Labor colleagues, honourable senators will remember, in the Chifley Address, that the best service that his Labor State colleagues could do for the country was to enact their own dissolution. Senator Murphy, now Mr Justice Murphy, following on that idea in this place, had the notion when this Bill was promoted that there would be a court so magnificent, so comprehensive and so overriding that the Federal jurisdiction would overshadow the State jurisdiction.
In respect of the original jurisdiction, the Bill proposes to gather in various powers of administration of the law that are now occupied by the High Court and also by the State courts, particularly in relation to taxation matters. It proposes to gather in all the industrial issues, all bankruptcy, and to take over the jurisdiction of the 2 territorial courts. In the appellate jurisdiction, the Bill seeks to give power to the court to entertain appeals from all inferior Federal courts and from the Supreme Court when exercising Federal jurisdiction. As I read the Bill, it purports to make that appellate procedure from inferior Federal jurisdiction in the State courts exclusive and therefore operates as an important effort to ringbark the State system of courts in regard to Federal jurisdiction and so bypass and, of course, weaken the Supreme Courts of the State. I think I have said enough to make the mere statement of the provisions of the Bill a matter for alarm. Those who have penetrated this labyrinth of technicality and complexity see great dangers in the practical application of this system.
We are accustomed now in this Parliament and elsewhere to acclaim with honour Chief Justice Dixon of the High Court whenever his name is mentioned. He was a vigorous opponent of opposition to the idea of a dual system of courts in Australia. He strongly advocated that there should be one set of courts with jurisdiction to entertain all issues whether Federal or State. I quote from page 52 of ‘Jesting Pilate’ in which he said:
What seems to me to be the greatest departure from English principle was the establishment of a new jurisdiction, called ‘federal jurisdiction’. Superficially, no doubt, it appeared a natural thing for the new government to include courts of justice of its own. As the writings of Hamilton in the Federalist’ show, it was this superficial view which led in America to the separation of courts into federal and State tribunals.
Then comes the punch of His Honour’s fundamental wisdom:
But neither from the point of view of juristic principle nor from that of the practical and efficient administration of justice can the division of the courts into State and federal be regarded as sound.
Sitting suspended from 12.50 to 2.15 p.m.
– Before the suspension of the sitting we were dealing with the Superior Court of Australia Bill and I was saying that the Opposition had no other course but to oppose this Bill because it would be a monstrous imposition upon the people of Australia in complexity and in defeating the whole purpose of the judiciary. I had quoted from Sir Owen Dixon as recorded in an article that appears in ‘Jesting Pilate’. I want now to make reference to the statement that His Honour made on taking his oath of office as Chief Justice of the High Court. He said:
I do not overlook the distinction which we unfortunately maintain between State and federal jurisdiction. That is an 1 8th century conception which we derived from the United States of America m the faithful copy which was made of their judicial institutions. It is to be hoped that at some future time it will be recognised that under the English system of law, the British system of law which we inherited, the whole body of law is antecedent to the work of any legislature and that the courts as a whole must interpret and apply the whole body of law, so that there should be one judicial system in Australia which is neither State nor Commonwealth but a system of Australian courts administering the total body of the law.
His Honour had also made great contribution to this cause in the evidence which he submitted before the Royal Commission on the Constitution in 1929, presided over by Mr Justice Nicholas. There Mr Owen Dixon, Q.C., as he then was, had occasion to comment upon the method by which the original jurisdiction was vested in the High Court and the terms that were used to express it. I refer to the evidence that he gave at page 99 of the report of the Royal Commission where he, referring to sections of the Constitution relevant to this, said: the greatest difficulty and confusion have arisen, and an incredible burden has been placed upon the litigant who has the misfortune to be affected in his litigation by any Federal law or any other matter with which sections 75 and 76 of the Constitution are concerned.
After making reference to the Federal public servants case and to James case he took up generally the question of the jurisdiction which was vested in the courts under the terms of matters arising under any law of the Commonwealth and pointed out how the litigent must take the risk of what is adversary should do before he would find himself either established in or displaced from the court of his choice. His Honour ended up by saying:
However effectual such provisions may be for ensuring that the High Court retains an almost exclusive authority to declare the meaning and effect of the Constitution, no one can fail to see that this is done at the expense of rendering almost futile and impossible the practical administration of justice for the purpose of adjusting the real controversies between subject and subject or redressing real grievances which a subject may have against the Crown.
But we are also fortunate in that as recently as 1 8 February- this month- reported in the Melbourne ‘Age’ are passages attributed to the present Chief Justice of the State of New South Wales, Mr Justice Street. He is reported as saying that the State court system must be kept free of encroachment and complication by any form of dual Commonwealth system. He refers to the forbidding example of the pattern of the dual court system of the United States, saying that the consequences of that system are notorious in that they have hampered and weakened the enforcement of criminal law. I do not wish to take the time to read the whole of it. I would be obliged if the Senate would give me leave to incorporate that short reference in Hansard.
– I had the opportunity to look at the article to which the honourable senator refers and I personally see no objection to its incorporation. Does the Senate grant leave to the honourable senator to incorporate it? There being no objection, leave is granted. (The document reads as follows)-
Judge raps dual law system
SYDNEY.- The State court system must be kept free of encroachment and complication by any form of a dual Commonwealth system, the N.S.W. Chief Justice (Mr Justice Street) said yesterday.
He said this was necessary if the court system was to cope effectively with the strains of the future, particularly in the ad ministration of criminal justice.
Mr Justice Street was speaking during the opening the 1 975 sittings of the N.S.W. Supreme Court in Newcastle.
He said that Australia had before it the forbidding example of the pattern in America where a dual court system existed.
The court system of the central Government in the United States stands side by side with the court system of the States, ‘ he said.
The consequences of this duality are notorious.
The judicial mechanisms of the United States in the area of crime are hampered and hindered in their function.
There are endless delays, complications and frustrations.
This may be a delight for criminals and reassuring to the livelihoods of the lawyers. But it is a heartbreak to civil litigants.
And, far more serious, it is a threat to the internal security of American society against crime and criminals.’
-Knowing my great interest in this matter honourable senators will not be surprised if I inform them that I made this one of my four particular fields of inquiry when 1 recently visited the United States. My canvass of inquiry was not wide and I would not presume to have anything but a superficial knowledge of the situation, but what I did find there was such as to confirm all one’s apprehension as to the dangerous and mischievous result that would come from this system. Not only is this referred to in the text that I mentioned this morning- Mr McGowen’s short work- but also if one goes through that text one finds that he refers to the tension which exists between the courts. He says:
Whatever the merits of the matter may be the point for the moment is that the organisation of judicial power along its present lines has caused a clamorous cacophony as unseemly in aspect as it is fraught with serious questions about the efficiency of the current allocation and utilisation of our already over-extended store of judicial resources.
The text illustrates by various doctrines of finding in the Federal courts a constitutional issue, the doctrine of pre-emption which, as I understand it, means much the same as our occupying the same field for the purpose of a test under section 109 of the Constitution, by the references to constitutional causes and now the underwriting of criminal cases by human rights and, I might say, the undermining of the enforcement of criminal cases by this doctrine, the utter weakness and danger of the system.
I have here a report from the New York Times’ of 10 November 1974 of a case where a gallery owner exhibited a flag in 1967 and had been fined for the contempt associated with that display. He went through a series of 3 State courts and finally went to the Supreme Court of the United States of America. On an even division of four-all his conviction was affirmed. After all that, in this cranky system that this Bill seeks to magnify and mushroom, he started an action in the Federal courts and persuaded a single judge of the Federal court to say that there was a Federal element in the case associated with freedom of speech, and one judge, 7 years after the State litigation began, negatived all the processes of 4 appeals in the State courts.
– But they could not possibly happen under this legislation. You are not suggesting that it is a parallel?
– The Minister knows quite well that that is just the mischief which Mr Justice Dixon was referring to and which Mr Justice Street, the Chief Justice of New South Wales -
– But you know that is not possible under this Act.
-I would not put these things forward on my own. I seek leave to incorporate in Hansard the relevant excerpt from the New York Times’.
The ACTING DEPUTY PRESIDENT (Senator Davidson)- Senator Wright is seeking leave to have material incorporated in Hansard. He has made it available to the Chair and it appears to me to be in order. Is leave granted for the incorporation of this material? There being no objection, leave is granted. (The document read as follows)-
U.S. Judge Reverses a Flag-Contempt Conviction
A Federal judge overturned yesterday a Criminal Court conviction of a Madison Avenue art-gallery owner for casting contempt upon the American flag by a display of flagdraped sculptures.
The owner of the gallery, at 818 Madison Avenue, Stephen Radich, had displayed in his second-floor window in December 1966, certain ‘constructions’ comparable to sculptures, created by Marc Morrel, an artist.
Among them were a gun caisson wrapped in a flag, a flag stuffed into the shape of a six-foot human form hanging by the neck, and a seven-foot cross with a bishop’s mitre on the headpiece, the arms wrapped in ecclesiastical flags and a phallus wrapped in an American flag.
In May 1967, a three-judge bench in Criminal Court found Mr Radich guilty of casting contempt on the American flag. He was sentenced to pay a $500 fine or serve 60 days in the workhouse. The New York Court of Appeals affirmed the conviction by a vote of 5 to 2.
In continuing his appeal, Mr Radich went to the Supreme Court which upheld the Court of Appeals on a vote of 4 to 4, with Associate Justice William O. Douglas not voting. Immediately thereafter, he applied to a Federal District Court for relief, which was denied on the ground that the Supreme Court had affirmed his conviction.
Mr Radich then went to the Circuit Court of Appeals, which reversed this finding, saying a tie vote did not represent an actual adjudication, and allowed the current action to be instituted.
Citing more than half a dozen recent Supreme Court decisions as guidelines, Federal Judge John M. Cannella found that Mr Radich had been deprived of his rights under the First and 1 4th Amendments to the Constitution.
He said the Morrel constructions constituted nonverbal communication intended to express a viewpoint- in this case, an antiwar position- and thus Mr Radich was entitled to protection under the freedom of speech provision of the First Amendment. He also noted that no disturbance to the peace had occurred as a result of the display.
– I say to honourable senators: Read the tome of ‘Harts and Wechsler ‘s the Federal Courts and the Federal System’ by Hart and Wechsler. It goes into the technical complexity of the matter. They will see that this Bill is the uttermost rot from the point of view of practical matters. That is the consequence of mushrooming Federal courts on a parallel line with State courts. There are all the difficulties of jurisdiction. As I was about to say when I was interrupted by the Minister, the situation has been reached in the United States of America where the existing statute and case law creates a crazy quilt that defies any purely logical explanation.
Rather than follow the unfortunate proposal contained in this Bill I think that it is imperative to take heed now of what Mr Justice Dixon said and what I have read to the Senate. I will read the substance of it again so that it will be clear: . . and apply the whole body of law, so that there should be one judicial system in Australia which is neither State nor Commonwealth but a system of Australian courts administering the total body of the law.
I endeavoured to have that argument established in the report of the Constitutional Review Committee of which I was a member from 1956 to 1959. 1 have written letters containing the same view to 2 retired judges, one as long ago as 8 years and another recently, without avail. I believe that it is imperative to counter the lack of understanding that lies at the basis of a proposal such as this which Senator James McClelland and his Party are trying to foist on Australia. I wish the Senate to know that I have taken upon myself, with assistance, of course, the task of devising an amendment to the Constitution that will alter completely the judicature section of the Constitution and create one judicial system in Australia so that this intricate, dry, complex and arid division between State and Federal jurisdictions will disappear. At this time, this year, nothing can be more opportune than that we should contribute to making simple, prompt and economic the litigants’ access to the court. This Bill, if accepted, would proceed entirely in the opposite direction.
Therefore, I hope that support will be engendered for this proposal, first in the legal profession and then in the thinking community, so that by positive means we will provide for a unitary system of the judiciary in Australia. Thus the threat which is directed to us from governments so ill informed as is the present Government, which would endanger the judicial system and very gravely damage it, would be removed once and for all. It gives me great pride in and a real respect for the Senate that it is so constituted that it can prevent today this complicated, dangerous system being foisted on Australia. We want to maintain a system of courts that is simple and in which a litigant can litigate the subject that is troubling him promptly, inexpensively, on simple issues and at a court near at hand. This Bill would land the litigant into the abysmal gulf of dry, technical and judisdictional questions that form the gulf between State and Federal courts.
Finally, I state that all I have said is in line with the development of British history. We have seen ever since the King’s courts were established in Great Britain dilatory but nevertheless uniform course of development of jurisdiction into one court. Jurisdiction in a multiplicity of courts bedevils the litigant.
-The Senate is debating the Superior Court of Australia Bill which expresses the thinking of both the Opposition and the Government at various stages over a period of 12 years. But the remarkable fact is that the present Opposition, which so vehemently opposes this Bill, espoused its principles over a period of 6 years. I will deal with them in a little more detail later. The essential purpose of the Bill is to create a coherent judicial system for the administration of justice at a national level. I was very pleased this morning to hear Senator Greenwood refer to his aspiration, and I use his words, ‘for the evolution of a national legal system’. This Bill does just that. The Bill provides for the establishment of a Superior Court of Australia, a Superior Court of record beneath the High Court of Australia but exercising with that court the jurisdiction which the Constitution describes as the judicial power of the Commonwealth.
Let me say first of all what this Bill does not do. The Bill has no sinister import. It is not a manifestation of so-called centralism. It is not an attack on the powers of State courts, powers which in Federal matters they have fortuitously held for three-quarters of a century because they existed at the time of Federation. More particularly, the Bill is not a sudden exemplification of Labor Party philosophy. As I have said, in principle and in much of its detail it is an application of Liberal Party philosophy expressed as long ago as 1 962 by the Liberal Party and embodied in the Liberal Party’s Bill when in Government in 1968.
Some critics of this Bill have failed to realise, so far as the exercise of the judicial power of the Commonwealth is concerned, the difference between the situation which existed nearly threequarters of a century ago and the position today when Australian Government laws bestride our national life and inevitably, whatever government is in power, will continue to do so. Let us go back to the position at the time of Federation as we see it delineated in the Constitution, the document which the Opposition embraces and for which it expresses reverence when it suits it and when it does not suit it it damns with faint praise or discards. Section 7 1 of the Constitution recognises that Commonwealth judicial power would be exercised in 3 streams of jurisdiction: Firstly, the High Court of Australia; secondly such other Federal courts as the Parliament created; and thirdly such other courts as it invests with Federal jurisdiction. As we are aware, that second stream would include the Bankruptcy Court and the Industrial Court. Section 75 and 76 of the Constitution went on to provide that the High Court should have or should be capable of being invested by the Parliament with jurisdiction in all the matters which are now set out in clause 19 of the Bill before the Senate as the subject of the original jurisdiction of the Superior Court of Australia. But section 77 then went on to provide that with respect to any of those matters this Parliament could make laws:
With regard to the latter power it is significant that Quick and Garran in their commentaries on the Constitution indicate their judgment as to the comparative temporary basis for the exercise of that jurisdiction. I refer to pages 803 and 804 where the expression ‘the early years of the Commonwealth’ is used. On page 726 a similar notion is expressed. So no one can say that this Bill transcends either the letter or the spirit of the Constitution or that its possible desirability was not envisaged at the time of Federation. It was natural in 1 900 for the Commonwealth Government to be given power to invest State courts with federal jurisdiction. Those courts already existed and the arrangement was one of convenience to which no one would then have objected.
It was also natural and convenient for this type of jurisdiction to continue for many years, but the situation is now very different. The Australian Government has emerged, even before December 1972, as the initiator of a large body of legislation which has a paramount effect on the lives of Australian citizens. It ought to be a corollary of that situation that the Australian Parliament should pass legislation, as this Bill seeks to do, establishing a national judicial system, which Senator Greenwood was espousing before the suspension of the sitting for lunch, which would be, of course, beneath the High Court but would embrace existing federal judicial institutions which will administer those national laws. My submission to the Senate is that failure to do so is to perpetuate a system whereby national legislation has no adequate national judicial system to support it. Only the historical accident of colonial-type judicatures can be used to oppose legislation of this sort and we ought not to perpetuate that historical accident.
Before the suspension of the sitting for lunch today the Senate was regaled, if that is the correct word, by the hyperbole of Senator Wright in opposing this legislation. He used strong expressions such as ‘major mistake’, ‘damaging in the extreme’, and ‘a monster’. This afternoon he used the expressions ‘dangerous and mischievous’ and ‘the uttermost rot’. I think I have distilled the main descriptions that he used in relation to this legislation.
– I do not think I used the last description.
– I noted it. I must have misheard you. We have an independent abritrator in the person of Senator Hall who indicates that Senator Wright did use that expression, but that is by the way. The first 4 expressions are sufficiently damning of the speaker in the context in which I seek to reply to him. Senator Wright, in an attempt to get out of the argument that he expected we were doing no more than applying what had been dear to the heart of the Liberal Party for a period of 6 years, referred to the Liberal Party’s waste paper baskets and said that we had taken this Bill from such a position. I am glad to hear a public acknowledgement that the
Liberal Party has policy waste paper baskets. I would have thought it would need a lot of big ones for its discarded or discredited policies.
– So that you can pick them out of the wastepaper baskets.
-That interjection will not divert me from going back to the address which the then Attorney-general, the Honourable Nigel Bowen, now Chief Judge in Equity in New South Wales -
– That was another appointment. We forgot about that one.
-Oh yes, it is on the list. I wish to quote at length from the address that the Honourable Nigel Bowen gave to the Legal Convention in Adelaide in 1967, because it exposes as mere humbug the extravagant language that has been used by Senator Wright during the debate. Mr Bowen said:
I am to talk this afternoon on ‘Some Aspects of the Commonwealth Superior Court Proposal’. Printed copies of a Statement which 1 made in the House of Representatives on 18 May 1967, have been circulated. This Statement announces the Government’s decision to establish the new court and gives details of its proposed structure .and jurisdiction.
He is referring, of course, to the Superior Court of Australia. He continued:
The idea of establishing such a court has been under discussion in Australia for some time. It first came into the realm of practical politics when Sir Kenneth Bailey, then Solicitor-General, speaking for Sir Garfield Barwick, then Attorney-General, at the Thirteenth Legal Convention in Hobart in January 1963, announced that Sir Garfield had Cabinet authority to design a new federal court with a view to consideration by Cabinet for approval for legislative action ‘.
At that Convention a paper on the subject was presented by Mr M. H. Byers Q.C. and Mr P. B. Toose Q.C. and was discussed by the delegates. Following on that Convention the Law Council of Australia and its constituent bodies gave detailed consideration to the matter. The Law Council appointed a Committee which made a report on 6 August 1963, and a copy of this was made available to the Government. The New South Wales Bar Association submitted a separate report direct to the Government. In 1964 an article by Sir Garfield Barwick on the proposed new court was published in the Federal Law Review.
Although there were some speakers at the Convention in January 1963 who opposed the creation of a new court, there was a broad consensus of opinion revealed in the reports of the Law Council and its constituent bodies that such a court should be established. The differences revealed were differences of opinion as to the structure and jurisdiction of the court. This is not to say that there are not still some lawyers in Australia who are opposed to the idea. Professor Sawer comes to mind as perhaps the most vocal opponent.
These are the pregnant words:
May I say that all the arguments which have been advanced against the idea have been carefully weighed and considered along with the arguments in favour of it. A decision has been taken to establish the court. That question is now academic.
In a period of 6 years all the arguments against the scheme which is embraced in this Bill were considered by the then Liberal-Country Party Government, now the Opposition. They were all discarded and a decision was made to proceed with the Bill. As we know, a Bill was introduced in, I think, 1968. Senator Wright today has relied very strongly on the views, which naturally enough will evoke respect, of the late Sir Owen Dixon. The Liberal Party paid scant regard to those views during the period between 1962 and 1968. It discarded all the arguments against a Superior Court. Where is the consistency in the Liberal Party approach to important matters such as this? When one looks at the history of the matter and considers how the then Liberal Government between 1962 and 1968 conceived and fostered the idea and finally introduced a Bill, where does Senator Wright stand with the extravagant language that he used this morning? Where did he stand between 1962 and 1968? Did he oppose the Bill in the councils of the Liberal Party? If he did, I have not heard of it. He may well have done. I suggest that puts the criticism of the Bill in its true perspective. The Bill was espoused by the Opposition for 6 years and has been espoused by the Government for a greater period, but now the Opposition says that it proposes to defeat this Bill.
I revert to the Constitution. I ask the question: Wherein does this Bill fail to satisfy the situation that was envisaged by the Constitution? The simple answer is that it does not so fail. I proceed to another aspect. I ask: Wherein does it fail to satisfy the proper criteria for a national judicial system, a system which, as I have said, Senator Greenwood was espousing this morning? I think one could state four such criteria. First, the court should demonstratably be a true reflection of accepted principles of justice. The history of Federal courts in this country is a very proud one. The High Court, the Industrial Court and the Bankruptcy Court have, I suggest, been shining examples of what a court should properly be. So, that criterion will be satisfied if” history is repeated. The second criterion is that such a court should not be fragmented by the delegation of judicial authority to some hundreds of judges and magistrates throughout the nation. This Bill achieves that.
The third criterion is that the court should be so constructed that it is capable of being publicly seen as a coherent judicial body with a capacity for uniformity of approach not only to great issues affecting the liberty of individuals and the quality of their lives but also to the resolution of issues between citizens and the Government and between citizen and citizen. The fourth criterion 1 would postulate is that in the interpretation of national laws it should reflect within the area of judicial power the proud spirit of a nation in which justice and its expression are paramount. It is through the judicial expression of that spirit that nations become strong. I submit strongly to the Senate that this Bill satisfies all those criteria.
– What about the cross jurisdiction to which Senator Wright referred?
– I share the view expressed by way of interjection by Senator James McClelland, the Minister for Manufacturing Industry who represents the Attorney-General in this chamber, that the analogy drawn between what this Bill really does and the American judicial system is a false one. I suggest that nothing in this Bill takes the situation anything like to the position that exists in America. If I am wrong in that I would like to be shown where I am wrong by reference to specific provisions. No doubt Senator Missen will seek to do that.
The point the Government makes is that this Bill seeks to cohere the jurisdiction of a multiplicity of courts which in a period of threequarters of a century have come to exercise jurisdiction in Federal matters. Let us have a look at the list of courts. We have the Federal Court of Bankruptcy, the Industrial Court, the Family Court- established under the Family Law Bill as this Senate agreed to it; it is not law yet- 6 separate State supreme courts, the supreme courts of the 2 Territories and a host of courts too numerous to count, such as courts of summary jurisdiction which exercise judicial powers under laws passed by the Australian Parliament, and courts which have to be taken, according to a decision of the High Court, as they are found for the purpose of the exercise by them of Federal jurisdiction. Looking at that heavy crop of courts one could say that there is no administrative nexus between any of them. There is no judicial comity between the judges and the magistrates who comprise such courts. The courts do not project any national judicial image and the situation is that, except for the Federal courts, namely the High Court, the Bankruptcy Court and the Industrial Court, we still have a 19th century colonial type basis for determining judicial matters arising under Federal law.
It is more than a decade since the Opposition, when in government, set out to end that situation, but regrettably it has changed its mind. Let us look in summary at what the Bill achieves. Time does not permit me to go into the details of the Bill, but I noticed this morning that Senator Wright referred to the divisions of the court. That is purely a simple administrative purpose. It is not necessary that all divisions be created to begin with. We already have three of them if we include the Family Division, the Bankruptcy and Insolvency Division and the Industrial Division. We already have those divisions, but they are separate courts. I would summarise under 5 headings what this Bill seeks to achieve. Firstly, it is designed to create a coherent judicial system on a national basis in relation to matters which arise because of the exercise by this Parliament of its legislative powers. Secondly, the scheme envisaged by the Bill is cohesive; it is not divisive. Thirdly, the Bill is nationally orientated and does not perpetuate the existing system whereby a multiplicity of State and Territory courts exercise jurisdiction in relation to Federal matters. Fourthly, it paves the way for the development at a level underneath the High Court of a body or system of settled law which is peculiarly national in its basic character because such a system of law stems from the interpretation and the application of individual statutes passed by this Parliament. Fifthly, it will take all Australian citizens- I emphasise that we are all citizens of Australia- along a path of even-handed justice. Since it is some time since the former AttorneyGeneral, the then Senator Murphy, gave the introductory speech when this Bill was introduced in this chamber, I wish to refer briefly to what he said. He said:
There are complaints from all over Australia about costs and delays in court proceedings, and the need to modernise procedures. The content of these complaints varies from State to State. Some States are better than others. New South Wales has only recently made an extensive overhaul of its judicial system, in the process of bringing in reforms adopted elsewhere a century ago.
That is a reference, of course, to the imperial judicature Acts of 1875. It took New South Wales a century almost to catch up with that judicial development. Senator Murphy continued:
I do not want to single out any State for particular criticism, but to highlight the fact that laws made by this Parliament and intended to apply uniformly throughout Australia do not in fact do so because of the difference injudicial systems and procedures.
Senator Murphy then gave a number of examples and continued:
The Government does not believe that the existing system, under which there may be such an uneven application throughout Australia of the rights and obligations under laws made by this Parliament or between the citizen and the Australian Government, should be allowed to continue.
That is the stand that the Government takes on this Bill. It wants to see it the vehicle for evenhanded justice throughout the nation. Can anyone deny the propriety of such a goal? Let me deal a little further with the opposition to this Bill expressed by Senator Wright earlier today. I have said that he based virtually his whole case on the views expressed by Mr Justice Dixon, later Sir Owen Dixon, which had so little charm for the Liberal Party when in government that it discarded them and, after all the opposition to this Bill that could be raised over a period of 6 years had been sifted, the then Attorney-General Mr Justice Bowen was able to say that all the objections had been examined, there was nothing in any of them and the Government was going ahead. The argument is, in his words, academic.
Finally, as far as Senator Wright is concerned, if we were not dealing with such a serious matter it would be comical. He rested his opposition partly on the fact that, in his words, a system of justice ought to be simple, prompt and economic. Those words came from the mouth of a senator who only last night was opposing Government legislation to abolish appeals from State Supreme Courts to the Privy Council. The person who could utter that last night now advocates a simple, prompt and economic system of justice. The Government would join with him in seeking that as a goal, but the Government says that this Bill, far from being a vehicle which will lead to the duplication and the delays of the American system, is, when it is analysed, a pretty simple Bill. It takes away in some respects jurisdiction from the High Court, a Court which for very many years has been acknowledged to be grossly overburdened. It gets rid of a multiplicity of State and Territory courts which exist at the moment and it coheres these in one court beneath the High Court, divided if necessary into 6 divisions.
I have endeavoured to show that the court as provided for in this legislation satisfies the accepted criteria as to what courts should do. I have established that it is not in any way inconsistent with the Constitution, and I think that I have established by my recounting of the history of this matter in the Liberal Party that it certainly cannot be said to be philosophically unacceptable to that Party. Why then the sudden volte face by the Liberal Party? Six years is a long time in which to cherish a concept such as this, develop it, and finally let it emerge in the form of a Bill introduced into the House of Representatives. It is inconceivable that the judicial system created by this Bill can be evil when it was cherished for so long by the Liberal Party which now, through Senator Wright and others, oppose it.
I support the Bill because I believe that it is a manifestation of an inevitable trend, is consistent with the Constitution and will project a national judicial spirit. It is a Bill which ought to commend itself to all senators and which at one stage did commend itself to all senators with the possible exception of Senator Hall and new senators since the introduction of the Bill. The situation has now changed. I repeat what I said last night. In so much of its opposition to Government legislation the present Opposition seems to show a degree of paranoia. Every time a piece of legislation is introduced which has some impingement, be it great or small, on the so-called rights or so-called powers of the States the Opposition raises a cry and opposes the legislation. It has a phobia in relation to that issue which is illustrated in its opposition to this Bill this afternoon. The phobia ought not to be allowed to obscure the basic and intrinsic merits of this legislation, which is very close in concept to the view of the Liberal Party in the last decade, if not now. For the reasons I have given I strongly support the Bill.
– I rise to speak in opposition to the Superior Court Bill. I compliment the lawyers who have spoken so far on their exposition of the Bill. It has been said that it is a lawyers’ Bill. I notice from looking at the speakers’ list that I am the only non-lawyer on that list. Judging from the increasing size of the books that are being quoted from, it looks as though it is a difficult Bill. The creation of a Superior Court in Australia is not a new idea. It was considered at Federation, but it was rejected. It has been considered by successive Attorneys-General since and has been rejected. That is not an insignificant fact considering the weight of the advice that must have been available to them. So a sea lawyer’s view of the Bill might not be inapposite now.
I took a look at the reasons why the Government was bringing in this Bill to create such a new court. The first reason it gave was that it was the policy of the Australian Labor Party, a reason that did not particularly commend itself to me and which I do not think would commend itself to at least half of the people in Australia. The second reason it gave was that there are large areas of jurisdiction which are of a specialised nature which justly fall under Federal jurisdiction. It names them as bankruptcy, taxation, trade practices, family law, industrial property and matters arising out of parliamentary law. I would point out that the State courts have been handling jurisdiction in these areas since 1903 and have been handling it com.petently. There has been no suggestion that they ave been doing otherwise. The third reason the Government gave was that it feels it should be able to sue and be sued in its own courts- and it added another half reason to that- because at present Parliament is excluded from considering reforms on legal practice and procedure. I say thank heavens for that. The Government claims that this has important effects on the rights of individuals in that it causes delays and increasing costs, that there are inequitable ways in which judgments are executed and that people’s rights can vary from State to State.
Then I considered the reasons why we should reject the legislation. Firstly, the prime reason is that none of the reasons given for introducing the legislation is concerned with what sort of a court system best suits the people. I submit that the only proper question to consider is what sort of court system best suits the people. An effective judicial system should satisfy a few criteria. Firstly, it should be independent of any outside pressure. Secondly, it should be accessible both financially and geographically to all the people all of the time. Thirdly, it should be simple and not complex. The ordinary citizen should be able to understand it and how it works, where to find it and what type of judges sit in it. Fourthly, it should be able to enforce all the law of the land and the citizen should be able to have all his rights determined in one court, whatever the source of the law, whether it be State or Federal law.
In a federal system the judicial system should act as a cohesive force throughout the nation. As I see it, the establishment of this large and powerful Superior Court would create a division in the country by dividing it into 2 court systems. The State Supreme Courts would be emasculated. lt would also add complexity to our legal system, and the 2 systems would be explicable only by an expert on constitutional law. Technicalities would abound. There would be judges with different tenures. There would be a great diversity of decisions between State and Federal courts. There would be many inconsistencies in criminal law and there would be divisiveness in the administration of the law between the Federal and the State judges. There would be different law enforcement officers. There would be federal marshals and State sheriffs. One can just imagine the confusion. Under this new system people would not be able to have their rights determined in one court irrespective of the origin of the law. On top of this, implementation of the Bill would cause friction between Federal and State judicial systems and between the judicial officers of those systems. None of the reasons for the introduction of the Superior Court is worth the price we would have to pay for it.
I remind honourable senators of the main provisions of the Bill and I quote from Hansard of 24 July:
It is to be a Superior Court of record, that is to say, the highest type of court. It will have power to fine and imprison and enforce its own orders. It will have power to fine for contempt. It will consist of a Chief Justice and other judges appointed from time to time. There will be 6 divisions with a Chief Judge for each division. The divisions are: Administration, Bankruptcy and Insolvency, Commercial, Family, General Division and Industrial Division. There will be an unspecified number of districts with a Chief Judge for each district. Since there is specifically established an Australian Capital Territory District and a Northern Territory District one assumes that there will at least be one district for each State, that is, in all at least 8 districts, each with a Chief Judge.
If honourable senators count those up they will find, according to my reckoning, that there will be 15 chiefs. I wonder how many Indians there will be. In addition there will be an original and appellate jurisdiction in the court. A great deal of the work of this new Superior Court will come from matters arising out of laws made by the Parliament so it will be a court of very wide jurisdiction.
I regard clause 23 of the Bill as a dragnet provision aimed at giving the Court jurisdiction in matters which are not matters of Federal jurisdiction. The Bill also contains provisions to transfer existing jurisdiction from existing courts- for example, from State Supreme Courts and from the High Court, from the Supreme Courts of the Territories, from the Federal Bankruptcy Court and from the Australian Industrial Court. If the new court is created there will be registrars and registries and marshals to enforce the law similar to the system which exists in the United States of America, with all its inadequacies and dissatisfactions. Under this new Bill practice and procedure are to be moved from the jurisdiction of judges and left to politicians. The Bill discloses the scope and size of the proposed Court, lt would be the largest court in the country and its writ would run throughout the Commonwealth and its Territories. It would exercise tremendous power over our citizens and it would be expensive. It would need many judges and their staffs. It would require the provision of courts, registries and jury facilities in every city of the Commonwealth and it would involve the employment of law enforcement officers and the construction of gaols and perhaps even re-education communes.
– How would it do that? What sort of law enforcement officers would it need?
– It would need marshals. Read the Bill. Concerning the third reason that the Government gives for the introduction of this Bill, that is that the Government thinks it should be able to sue and be sued in its own courts, 1 think that in a parliamentary democracy no government should put itself above its people. Why is this Government trying to do that? I submit that where the people sue and get sued is the proper place for the Government to sue and get sued.
The wisdom of the founding fathers of our Constitution which was challenged so heavily by the Government during the Joint Sitting last year was shown in the fact that they considered the establishment of a federal court and rejected it. They gave their reasons but to give honourable senators some idea of the thinking at the time I quote from a telegram of 1 April 1897 sent by Simon to Sir Samuel Griffiths. It was said of this proposal to vest Federal jurisdiction in State courts that the object was ‘to avoid the needless creation of Federal courts in all the States and the consequent degradation of the State courts and avoid the difficulties of litigation which exists in America’. In other words, in those days the use of the State courts was seen as a means of maintaining a simple court system handling both Federal and State law with the High Court acting as the supreme court of Australia. This same argument is still good today.
There is no suggestion from the Government that Federal law is not being properly administered under the present system. There is no need to construct this big expensive court. The State courts have been handling taxation and industrial property jurisdiction competently for years. Any specialised Federal jurisdiction that requires a special court could be vested in the Industrial Court, as could jurisdiction under the Trade Practices Act, resale price maintenance and administrative review appeals. The proposed Court would degrade our Supreme Courts. The Supreme Court would bc stripped of jurisdiction in matrimonial causes, company matters, consumer affairs, accident insurance cases, jury cases, motor vehicle cases, industrial accidents, workers’ compensation, taxation cases and industrial property cases. What would be left for the State courts? They simply would become property courts of an inferior status.
In other words, this is a centralising Bill. It is designed to transfer powers from the States to
Canberra at huge cost to the taxpayers. It is an entirely unnecessary Bill. The Opposition is convinced that if this Bill is adopted by the Senate it will be a retrograde step. It will remove the creative opportunity to improve our judicial system and it will seriously weaken our State courts, divide our judiciary and confuse the people. We oppose the Bill.
– I rise to support the Superior Court of Australia Bill and I am more fortified in so doing as a result of having listened to the clouds of monumental irrelevancies which have been spread across this chamber during the course of the debate by Opposition senators. I take particular care to single out that learned gentleman Senator Wright for his contribution to this debate. I remind the Senate that we are debating the Superior Court of Australia Bill and that in essence the proposal is to establish a new Federal court exercising Federal jurisdiction. It is envisaged that such a court would streamline the administration of justice and establish a coherent national judicial system. Clause 13, to which Senator Wright referred, deals with the divisions of the court and they are interesting because they indicate something of the area of the proposed court’s activities. They include the Bankruptcy and Insolvency Division, the Commercial Division, the Family Division, the General Division and the Industrial Division.
– You omitted the Administrative Division.
-I omitted the Administrative Division, as Senator Wright pointed out, because it does not seem to be of comparatively as much significance as the other divisions at this point of time. Clauses 19, 20 and 2 1 deal with the jurisdiction of the Court. An examination of those clauses reveals that in clause 19 there is set out the manner in which the Court should have original jurisdiction. They are referred to in clause 19(1). They are matters which arise under any treaty, which involve diplomatic representatives, matters in which a person is suing or being sued on behalf of the Commonwealth, matters which are between residents of different States and so on. Later the Bill gives the court the power to deal with questions such as admiralty and marine jurisdiction. Clause 20 deals with matrimonial causes jurisdiction which has been the subject of debate in this chamber in connection with the Family Law Bill. Clause 2 1 deals with the appellate jurisdiction of the court. Basically those clauses set out what the proposed legislation is about.
It is put that the Bill should be seen in the light of the growing complexity of our society and of the changing nature of the role of the courts. It must also be seen in the light of the growing significance of Commonwealth legislation and constitutional power whether apparent under Liberal or Labor governments. The fact is that that is an inevitable process as Australia develops as a nation. If one looks at the present outline of the structure of the judiciary in Australia one sees that that structure, as it was originally envisaged and laid down, has developed in some quite extraordinary ways. At the top of the hierarchy is the High Court exercising its original jurisdiction and appellate jurisdiction from State and Commonwealth courts. Under that court in the hierarchy there are the State supreme courts which exercise jurisdiction, which is derived from State Acts, and under the common law in matters concerning residents of those States. There is an appellate jurisdiction from inferior courts of each State to the supreme court of that State.
In addition to that the supreme courts of the States exercise Federal jurisdiction in a variety of matters in respect of which jurisdiction is conferred by this Parliament. Of course, under the State supreme court structure there are the county or district courts, all of which may have Federal jurisdiction conferred on them. Likewise magistrates courts may have Federal jurisdiction conferred on them. In essence that is perhaps quite a simple judicial structure. But it has been complicated over many years by the growth alongside that structure of the Federal judicial system. For example, we have the Supreme Courts of the Australian Capital Territory and the Northern Territory, the Commonwealth Bankruptcy Court and the Commonwealth Industrial Court. I shall take the latter court, the Commonwealth Industrial Court, as an example of the rather extraordinary way in which Federal jurisdiction has grown.
The Commonwealth Industrial Court was established in 1956 following the Boilermakers case. It was effectively established because of the need, following that case, to define the exercise of judicial power from the exercise of arbitral power. That court was established, as its name still suggests, as an industrial court of the Commonwealth of Australia, designed to determine the rights and obligations of organisations and individuals involved in industrial matters and industrial disputations. In 1975 as a result of the increasing complexity of our society and the growth of Commonwealth involvement and Commonwealth legislation we find it exercising jurisdiction as a court under a number of Acts of the Commonwealth including the Navigation Act, the Broadcasting and Television Act, the Commonwealth Employees Compensation Act, the Restrictive Trade Practices Act and the Stevedoring Industry Act. Those jurisdictions have been artifically grafted on to the original jurisdiction of the Commonwealth Industrial Court. This has completely changed the nature of that Court from one of industrial expertise to one which now is charged with functions under various Commonwealth statutes and commissions in terms of boards of inquiry, royal commissions and so on which have totally changed the scene. In spite of that the court is still referred to as the Commonwealth Industrial Court. One assumes that it has a primary function in this area.
This indicates a growing complexity in the Australian judicial system which has undoubtedly confused Senator Wright and, one assumes, must accordingly undoubtedly confuse many people and many potential litigants in the community. I am surprised when Senator Wright in this chamber quotes Sir Owen Dixon in his criticism of the growth of Federal jurisdiction. The growth of Federal jurisdiction is something with which we have had to live under governments of both political persuasions for a very long time. Senator Wright’s views on this subject remind me very much of the exchange between Glendower and Hotspur in Henry IV, Part 1. Glendower said: ‘I can call spirits from the vasty deep’. Hotspur said: ‘Why, so can I; or so can any man: But will they come, when you do call for them?’ Of course, Senator Wright can summon authorities from the shady past but the question is: Are they relevant in 1975? That is the key point in this debate. Are the authorities of 20 and 30 years ago relevant to the question of the establishment of a superior court of Australia in 1975? Senator Wright knows they are not. I appreciate Senator Wright’s chronic addiction to a constitutional view which springs from horse and buggy days. After all, he himself springs from horse and buggy days. I have some sympathy for those times. For example, when I am caught in a traffic jam I, too, have a romantic attachment to the horse and buggy days. But when we are considering the judicial structure of the Commonwealth of Australia are these considerations which Senator Wright raises relevant? The simple point is that there is a need in 1975, capable or not as we may be of recognising that need, for a philosophical recognition of the need for a national judicial system. I believe Senator Wright to be incapable of recognising that now although apparently he was as a younger man when the Liberal Party was in office.
I refer briefly to the history of this matter. It has been around for a number of years- to be precise, since 1962. The question of whether there should be a superior court of Australia has been debated by academic lawyers, judges and politicians. Conceptually, it is a Liberal Party notion which was scrapped in 1972. I thought that Senator Wright said with admirable eloquence that the Government had now picked up the Liberal Party wastepaper basket and scavenged out the Superior Court Bill. I think I can say that we as a government are not too proud to take something out of a Liberal Party wastepaper basket where that Party has consigned it because of its own vacillation and confusion. As a government we are not too proud to take something out of that wastepaper basket if we think it meets the needs of the Australian people and nation in 1 975. That is what we have done.
I am surprised at Senator Wright’s moral indignation on the matter because at the worst we can be accused of nothing more than larceny by finding whereas Senator Wright belongs to a party which at the May 1974 election could be accused quite openly larceny by stealing Government policy. The honourable senator knows that very well. As a practitioner in the Hobart magistrates court the honourable senator knows very well that there is a big moral difference between larceny by finding and larceny by stealing. I am surprised at his attitude today in this matter. I was referring to the history of this matter and I said that it was a Liberal Party development. I quote now from a speech made on 18 May 1967 by the then Attorney-General, Mr Nigel Bowen, in relation to this legislation. He said:
The growth in Federal litigation has been such as to impose an increasing burden on the High Court. The result of that growth has been that, unless the number of High Court justices is increased, there is a serious risk that the volume of work in the original jurisdiction of the High Court will inhibit the Court’s capacity to fulfil its principal role as an arbiter of constitutional questions and as the nation’s ultimate appellate court. Because of the provisions of the Constitution requiring all judges to have, in effect, life tenure, the Commonwealth, unlike the States, cannot relieve its justices on a temporary basis by the appointment of acting justices to deal with arrears or accumulations of business as they occur from time to time. At the same time the complexity of government has grown very considerably and the activities of the Commonwealth Government and of its agencies have correspondingly become very much greater and much more intricate than they were at the inception of the Commonwealth. . . .
I interpolate there: That was said in 1967, and what was true in 1967 is of course much more true today. He went on:
Yet, there has been no corresponding growth in the judicial organs of the Commonwealth to keep pace with these developments. Apart from the creation of two Federal courts of limited specialised jurisdiction, namely the Commonwealth Industrial Court and the Federal Bankruptcy Court, the High Court in its original jurisdiction and the various State courts exercising Federal jurisdiction have dealt with all matters arising under the Constitution and Federal statutes.
As these trends continue, there will be an increasing amount of Federal litigation which will overtax the existing arrangements. . . .
I pointed out that that was said in 1967. What was true in 1967 is even truer today because the trends which the then Attorney-General referred to are still continuing and growing in pace, and the failure to appreciate these trends-as the Liberal Party has failed to appreciate so many other trends in our society- led to the abandonment of this project for a Superior Court Bill in 1972. That abandonment was indicated by Senator Greenwood in this chamber in a speech given on 27 October 1 972. He said this:
The Government -
That is the Liberal Government- has taken another look at the whole matter. With the full support of the Chief Justice, the Government has decided that it should follow the alternative course, which is available under the Constitution, of investing State Supreme Courts and the Supreme Courts of the mainland Territories with original jurisdiction in certain additional federal matters in respect of which the High Court now exercises original jurisdiction. The Government, on reflection, sees this alternative course as having a number of important advantages. It will provide a more integrated system of courts . . .
Then he pointed out that it would give the judges of those courts opportunities for experience in new and important jurisdictions, as if that were a consideration of fundamental importance to a judicial system. He went on to state:
The Government sees its present proposals as an exercise in co-operative federalism that will benefit both the States and the Commonwealth.
With those words Senator Greenwood ushered in the death knell of the Superior Court of Australia as a Liberal Party concept after 10 years of debate and vacillation and indecision about whether to go on with that project or not. Today in this chamber we find honourable senators on the Opposition side of the House talking as if that decade had been erased from history, as if the debate had never gone on in the Liberal Party, as if it were never a matter which had received their serious consideration and attention, but we know that not to be so.
I refer to the need for this Parliament to match the needs of contemporary society with an appropriate judicial system. I have no doubt at all that the proposal for a Superior Court has some attendant disadvantages. Every proposal which comes before this Parliament in one form or’ another has disadvantages as well as advantages, and the question really is whether the advantages outweigh the disadvantages or not. Certainly there are disadvantages, but they are not iniquities of a great kind; otherwise they would not have existed like a viper in the bosom of the Liberal Party for a whole decade, if we are to believe what has been said on the other side. But the growth of the court system must be seen as an evolutionary process. The problems which may arise, the pettifogging problems which have been referred to in debate in this chamber, are not insurmountable and can be ironed out if there is goodwill in the national Parliament to do so. There is a problem, which has been magnified out of all proportion, of defining or refining the jurisdiction of the court, but it is not in effect a contentious political issue to do that. It is a question which involves a matter of sound administration and sound government.
The question really remains, as I said, whether the basic proposition of a Superior Court is a sound one or not. Might I point to some of the positive advantages of the establishment of the Superior Court of Australia. The first positive advantage I will point to is that it avoids a multiplicity of courts exercising federal jurisdiction and the continual process which has been going on of rather phoney grafts of additional jurisdiction onto existing tribunals such as the Commonwealth Industrial Court. That is an important consideration which cannot be over-emphasised. The second consideration is that the establishment of the Superior Court would relieve the High Court of Australia of the more burdensome aspects of some of its original jurisdiction in matters that can be dealt with appropriately by a court of the kind envisaged. That would have the consequence, it is put, of speeding up the work of the High Court and enabling it to concentrate on its essential function in a growing and increasingly complex society as custodian of the Constitution and as the highest appellate court in the land. Let there be no mistake about it. Insofar as litigants before the High Court of Australia are concerned, it is not a speedy court in dealing with litigation. It is not a speedy court in giving judgments after matters have been argued before it, and there can be great inconvenience caused to litigants and great costs incurred as a result of the delays which are apparent in the High Court at the moment.
Another positive advantage is that the Superior Court of Australia would relieve the State Supreme Courts of some of the burdensome jurisdiction in relation to Commonwealth matters which are set out in clause 36 (5) of the Bill. That sub-clause sets out a number of matters of federal jurisdiction in which the specific statutes are referred to. I notice that it includes, among others, the Marriage Act. I remind honourable senators of the debate we have already had in this chamber in connection with the Family Law Bill where the view was expressed by many honourable senators that it was desirable that the full power of the Commonwealth in relation to matrimonial causes and marriages should be exercised by the same court and that the full jurisdiction of that court should relate to those matters. Not only would the removal of these matters from State Supreme Courts place the matters in their proper jurisdiction basket in a federal jurisdiction but also it would enable State Supreme Courts to concentrate on areas of their exclusive jurisdiction where the most chronic delays now occur in the judicial system in Australia, the most chronic delays as they affect individual litigants. If I might refer to my own State of Victoria as an example, whatever the Hamer-makes-it-happen Government may have done in Victoria- and I cannot think of a single thing at the moment- it certainly has not speeded up the process of justice in that State. After some 1 9 years of Liberal Government in Victoria the same complaints are still being made about delays in the Supreme Court of Victoria, about delays in getting on with damages litigation, about delays in handling the matrimonial causes jurisdiction, delays which cause hardship and inconvenience to thousands of litigants in that State. That pattern is repeated perhaps everywhere in Australia except in Senator Wright’s own little bailiwick to the south. I say to Senator Wright, who is trying to interject, that it is possibly the only exception insofar as delays of that kind are concerned.
– It is not an exception.
-I am delighted to hear that -
– You are delighted to hear that?
-I am delighted to hear that it is not an exception and that the delays are the same as in other States, because that is what I apprehended Senator Wright to be saying.
– You should be happy about it.
– I am not happy about it. Before those interjections about Tasmania came my way, I was making the point that the establishment of the Superior Court would enable the State Supreme Courts to get on with the areas of their exclusive jursidiction and catch up on some of the chronic delays which are existing in those areas which result in the denial of justice to so many citizens and litigants.
Finally, as a positive advantage of the proposed Superior Court, may I point to the fact that the court will have original jurisdiction in a very significant and important area of growing Commonwealth legislation. I point for example to the trade practices area, the area of commercial law involving large corporations, and the development of environmental law in this country, all of which are appropriate matters whether the neanderthals on the other side of the chamber like it or not for a national judicial system and not for a judicial system of the superannuated colonies called States in this debate.
– Is that your view of the States generally? Is it your view that they are superannuated colonies?
-No. My emotional emphasis was on my view of you, Senator Baume, not on my view of the States. I wish now to deal with some criticisms which have been made of the legislation. It has been said that the matters which are proposed to be dealt with by the Superior Court of Australia might appropriately be dealt with continually by investing State courts with Federal jurisdiction. I have already dealt with that question in part by pointing to the inadequacies of the State Supreme Courts in this regard. But apart from that, that claim just is not so. The family law area is an excellent example of the failure of Supreme Courts to deal with matters arising from Federal jurisdiction. There are other similar matters in which there is a backlog of litigation in State courts.
Another criticism which is made is that the proposed Superior Court could not dispose of related issues between litigants and third parties in matters in the same proceedings. I follow the suggestion which is made that we lay ourselves open to an area of potential confusion in that regard. But I put it to the Senate that that is not an argument against the establishment of the Superior Court of Australia. It is an argument for a conscientious effort to define the areas of the exclusive jurisdiction of the Superior Court. It is an area not only for a conscientious effort on the part of this Parliament but also is appropriate for a judicial exploration as the growth and development of Commonwealth legislation continues.
Further, it is suggested that the court should not be established because it would give rise to confusion and the need for judicial decisions whether a matter involved Federal jurisdiction. Once again that is really an argument relating to the extent to which the Superior Court of Australia Bill should provide for appeals from State courts. The answer to this argument lies in clauses 36 and 37 of the Bill which gives the Superior Court exclusive jurisdiction to hear appeals only in matters where there can be little doubt that the Superior Court would be exercising Federal jurisdiction. If there are any remaining doubts they can be resolved, as I have said before, by appropriate legislation of this Parliament or by the process of judicial exploration in the course of the growth and development of the court. There are other criticisms which are made and which border on the pettifogging compared with the positive advantages of the establishment of this court.
I regard this in a sense as being an historic debate. It is totally unimportant in some ways and totally uninteresting at this time to the average Australian citizen. But it is historic and important because I believe that we have now reached a stage in the trend of development to which Mr Nigel Bowen when he was the Attorney-General referred, that is, that the time has come for the establishment of a superior court of this kind. I believe that, even in 1900, it was envisaged by the founding fathers of the Constitution that there would be the growth of a Federal or national judicial system to deal with matters arising under Commonwealth power. I believe that in 1975 the time has now come. For that reason I regard it, as I have said, as an historic debate in which the views of the Government in years to come, though they may be defeated by Opposition numbers, will be regarded as the appropriate and mature view to have taken of this question of judicial development in 1975. 1 commend the Bill to the Senate.
-The Superior Court of Australia Bill comes before the Senate in most curious way and at a most curious time. Whilst Senator Button says that it may not be an important debate and it may not be listened to by many people at this time, I think it is worth while recording that this Bill, which presumably the Government considers to be important, has been on the notice paper of this Senate for approximately 6 months. It has gone up and down the notice paper like a yo-yo. It has been regarded as a stopgap measure or a make weight whereby if we ran out of business we would deal with it. It has never been considered by the Government to be or been treated as a Bill of significance. The Government has chosen this time for debating it, which I will seek to demonstrate is, perhaps the most curious and inappropriate time to bring forward the Bill for debate.
I oppose the Bill. I regard it as unnecessary and undesirable in our legal system. I trust it will be defeated. I say for one reason that it is untimely, because we have heard Senator Button this afternoon describe the divisions of the court. He omitted the Administrative Division, which is one that has been chosen to be placed in this legislation. Of course, he went on to say that it was not significant at this time. Of course it is not significant at this time because there is no legislation setting up any work for an Administrative Division to which this at present can refer. I will give a similar reference to the Family Division, which is likewise in a most curious situation, further on in my speech.
– You know why that is.
– I know why it is and, Senator Button, you know very well why it is. You know why this Bill becomes even more inappropriate at this time when we have passed through this Senate a Family Law Bill which creates a Court and takes a completely different course from what was contemplated in this Bill. But, no doubt, the Government is of the opinion that it is dealing with, in Senator Button’s memorable phrase, ‘superannuated colonies’ and, I suppose, regarding the courts of those superannuated colonies in a similar fashion it seeks to impose this new system of courts, which will be extremely disastrous to this country.
Senator Everett made 3 references in particular. No doubt he expected to have them mentioned by me. He and Senator Button spent a great deal of time describing the Liberal Party policy, speaking wistfully about the Liberal Party policy as it was and which they desire to take over. We do know that this is a period when the Government is readily picking up policies from our Parties. Consequently, the Government has a loving regard for the fact that at times Attorneys-General in this Parliament took the view that there was a place for a Superior Court. On the other hand, these Attorneys-General looked at the matter thoroughly and came to the conclusion in the ultimate, that despite the superficial interest which there might be in a system of courts which they thought would be perhaps neater or prettier than the existing Federal jurisdictions, it was not workable and was objectionable for many other sound reasons.
It is important for me to say to this Parliament that the policy of the Liberal and Country Parties on this question of Federal jurisdiction has been made very clear. In the book ‘The Way Ahead’, which sets out the policies of our parties, this is said:
The Liberal and Country parties will not establish a Federal Superior Court. They believe in maintaining in Australia one system of courts. A Liberal and Country Party Government will as far as possible vest the State courts with federal jurisdiction. In consultation with the States it will examine ways in which efficient, modern and less time-consuming procedures may be developed and Commonwealth support and assistance may be provided to maintain confidence in our system of justice.
Therefore we have -
– What do you mean by one system of courts?
– One system where as far as possible we will vest in the States, jurisdiction. Much of the Federal jurisdiction at the moment is vested in smaller courts and in many cases this is unnecessary and could be dealt with rightly- I will develop this in the course of my speech- in our existing system of State courts.
I come to the second matter which Senator Everett saw as being of significance. That is the statement which he made that at Federation it was natural to invest jurisdiction in State courts, but he went on to say that it was not up to us to perpetuate an historical accident. It has already been made clear by the telegram, read out by Senator Sheil in his speech, from Simon to Sir Samuel Griffith at the time when the original Constitution Bill was being considered. It was quite clear to them, then, that it was highly undesirable to follow the American practice and have separate jurisdictions in separate Federal courts. That is why there is in the Constitution the power to vest, in the State courts, Federal jurisdiction, a power which is not found in the American system.
I have 4 basic objections in principle to the establishment of a Superior Court as proposed in this Bill. In the first place we should develop our own system as proposd by the Parties on this side of the chamber and not follow the American precedent with whatever variations we might make to it. It is a strange thing that honourable senators opposite who, for so many years, have opposed practically everything the Americans have put forward and who have a policy of antiAmericanism in so many areas should choose this one particular disastrous area of American law to copy.
– That argument could be reversed.
– I assure Senator Milliner that we do not copy everything the Americans do. We look at these things independently. But it is a strange thing that those of his colleagues who are so adamantly anti-American should choose what is perhaps the worst of all examples to which they give their support. There is, as I have said, that difference between the powers which the Commonwealth has and the powers which the Americans have which makes it unnecessary for us to follow their example.
I want to refer to the matters with which Senator Wright dealt so well as further evidence of the foolishness of taking the American example. Judge Leonard P. Moore, in an article reported in the New York State Bar Journal, sets out the particular problems of State and Federal judicial conflict and talks of the tension between the States and Federal courts in America. He says:
Let me start by talking about cases of the worst sort of friction between federal and state courts, just to point out what kind of trouble our country’s dual judicial structure can lead to, and to offer some suggestions as to how that trouble can be in part avoided. 1 like to call the worst kind of cases the ships that pass in the night group. Two ships on parallel courses, each apparently oblivious of the other. In these cases, Jones starts a lawsuit against Smith in the state courts, and Smith files a counter suit against Jones in the federal courts. The federal courts, both trial and appellate, find for Smith; the state courts, both trial and appellate, find for Jones, the litigants languish; the citizenry are justly outraged at the confusion; and the lawyers prosper.
That is the opinion of an American judge well experienced in this jurisdiction, and he quotes another federal district court judge in the following terms:
When the lowest court in the federal judicial system reconsiders legal claims that have been presented to the highest court of the state and they are turned down, it is performing its most delicate judicial task. Federal judges do not like this kind of business.
We know that under this Bill we will have the possibility, with concurrent jurisdiction, of Federal matters being dealt with in a Federal court and other claims between the same parties being dealt with in State courts with a massive amount of litigation, with costs involved and with a great deal of dismay for those who have to particpate as litigants in those cases. 1 refer finally to the statements which have been made recently by the Commercial Law Association of this country, a very reputable organisation which has taken a great deal of interest in the legislation of this Parliament. On 20 September 1974- and nothing has happened since- it had this to say about the Bill:
After careful consideration of the Bill, the Association is convinced the apparent theoretical advantages which have been suggested by the Government for the Superior Court are far out-weighed by other serious, practical and constitutional problems. American experience with the division of the federal and state court hierarchies confirm this view.
The Association concluded:
The new law follows the American court system and would probably tend as is illustrated in the attached report to the proliferation of unproductive disputes as to jurisdiction and to circumstances where by reason of the limited jurisdiction of each system complete relief could not be obtained without actions being brought before both State and Federal courts.
In an excellent report, the Association set out many details to indicate how this could occur. So I say, in the first place that we should not follow the American precedent; we should continue to develop our own State court system.
I come to a second point which has been emphasised by honourable senators opposite who have spoken in this debate. Somehow they suggest that there is some national purpose, they suggest, in developing this new legal system. I suggest to the Parliament that in fact it would be a retrograde step to create this system, to create it and ignore the evidence of the experience and the opinions of men of the eminence of Sir Owen Dixon who wrote what has already been read into the record. This law of ours should not be cluttered up with fights over jurisdiction such as whether a matter is a Federal or State matter but should be developed in the one court where both matters could be litigated. We want to keep the discussion between Federal and State jurisdictions academic instead of making it a practical matter that will non-suit and destroy the litigation of particular parties. So there is no national purpose or national need for a Superior Court in our system.
The third of these reasons of principle is that we have in existence State Supreme Courts of high quality whose abilities and judges are such that they are held in respect not only in this country but in many other countries in the Englishspeaking world which, in quoting from them, recognise their qualities. One can only recognise that if we create a new court system we will be taking judges from the present system and we will weaken the State system in order to create a new body of courts. We have a body of courts at the moment which operates successfully. When Senator Button, who quoted from the second reading speech of Senator Murphy, as he then was -
– No, I did not.
– It was Senator Everett. I draw his attention also to another statement made in the second reading speech on 12 December 1973 at page 2725 of Hansard. There the former Senator Murphy said, in dealing with the administration of State courts:
Of course, the courts have not distinguished between Federal and State law, and litigants in federal actions have not suffered any disadvantage or enjoyed any advantage over litigants in State actions. It has been put forward as one of the virtues of the present system, that a State court does not generally need to inquire whether the matter before it is a Federal or State action. Problems of limits of jurisidctions and of power to deal with a particular matter have thus been avoided.
I believe that that is perfectly sound and should have been maintained by removing this Bill. We are not in the mediaeval period when barons and hierarchies felt they needed to have their own courts in which matters could be dealt with because they did not trust the justice of other people who lived just 10 miles away. Today we live in a civilised country in which we have had the experience of over 100 years of the jurisdiction of the State supreme courts. Therefore, I state that there is no basis for removing or weakening their jurisdiction
The fourth of these major reasons of principle to which I have referred is the one mentioned by Senator Button namely, the suggestion that there is such a High Court backlog of work that this new Court is needed. When the AttorneyGeneral, Mr Enderby, made his second reading speech he stated that originally and largely the reason for the Bill was the backlog of work, but that is no longer entirely the reason. In fact, it is not the reason at all. There is not a backlog of work now in the single justice jurisdiction. This has therefore removed the reason which was thought to be important by those in this Parliament who in years past found reason for supporting this proposal.
Apart from those general reasons, there are 2 areas in which this Bill has become particularly redundant. The first is in regard to the family law area which is one of the divisions of the Court as now proposed. It is proposed to set up in the Bill a separate Family Law Division which would deal with a certain amount of the matrimonial jurisdiction. This is in complete contrast and contradiction to the terms of the Family Law Bill which was passed by the Senate and which is yet to be dealt with by the House of Representatives. It means that if we were to pass this Bill, we would be passing something in complete contradistinction to the Family Law Bill. We would not be saying as we did say in regard to that Bill that we did not want a judge who would move from one jurisdiction to another to preside over that court but that we wanted judges who were experienced primarily in the family area. Here is a Bill being considered by us which states, in effect, that there will be one division of the Superior Court staffed by the Superior Court judges.
The Government has not even had enough interest in this Bill to amend that aspect of it. It realises that it is only going through the motions of presenting it to the Senate.
I have mentioned already the second area- the Administrative Division- in which if we would expect to have some simple and worthwhile administrative tribunal to deal with appeals. We ought to know what will be the nature of that tribunal. If honourable senators pass this Bill now before us, they will probably find that, when the tribunal is created, there will be a multiplicity of appeals from it. If it does not contain a judge of the Superior Court, then the appeal will be required to go to a single judge of the Superior Court and then on appeal to the Full Court. An administrative system which is supposed to simplify and provide justice for people who have objection against government administrative decisions will contain a mass of appeals. Therefore, in this whole fog of obscurity in this administrative area the Bill has no relevance to any administrative structure which we have at the present time.
I turn to a third area- the practical and financial impediments to this Bill. These are matters to which Senator Sheil referred briefly. When the predecessor Bill to this Bill was discussed last year Senator Greenwood made an estimate that there may be some 30, 40 or 50 judges required. I regard that as a pretty accurate estimate. It could be that he made a modest estimate. We are conscious of the fact that there are Chief Justices, Chief Judges, the divisions have Chief Judges and the districts created on an agreed geographical basis have Chief Judges. I think that the number of judges mentioned in this regard was about 15. When we come down to estimate how many judges altogether will be appointed under this Bill we find that the Ministers who have been dealing with the Bill cannot explain how many there will be. Mr Enderby, who introduced the Bill in the other House, said that the Bill would not of itself result in a demand for many additional judges. That is a very careful but obscure statement. But if honourable senators turn to the explanatory memorandum which accompanies the Bill, they will see that it is stated:
It is not possible to foresee what number of judges would be required to exercise the jurisdiction of the Court throughout Australia.
I prefer to take that as the more accurate explanation. There is no way in which we can determine this. In this economic period there is no way in which we can determine the cost to this country of creating a completely new system of courts. There is no way of estimating how many registrars and how many districts there will be. There is no way of determining how many administrative staff will be required and how costly that would be. We have had put before us something of great expense to the community but we have no way of determining how great it will be.
In addition to this, we have before us a suggestion of creating many judges. I have already mentioned that these judges must come from somewhere. I have not the unlimited faith in the legal community in this country to think that we have the number of prospective judges of capacity who could fill these positions. We have to bear in mind that judges in the existing courts go on circuit in the States and bring justice nearer to the people. Presumably, if this new Court is to come into existence, it must also travel. It must go to various towns where it will be engaged for half a day or a quarter of a day. Therefore, the wastage of judicial time will be exaggerated and increased by the existence of a double set of courts.
I have said that there will be a massive increase in bureaucracy and cost. There will be Marshals and Deputies of the Court. There will be an unlimited number of registries because it is not provided now in the Bill how many there will be. Premises will have to be obtained throughout the country to provide accommodation for the Federal judges. Accompanying this, there will no doubt need to be Federal gaols also created so that State gaols will not be used. Altogether I say that this Bill provides an immensely increased expenditure for the people of this country.
In addition to this, it provides a great deal of uncertainty. Many of the provisions of the Bill, such as clauses 26(1) and (2) do not describe in any way the type of jurisdiction or the way in which the court will be operating. For example, the clauses state that writs and orders will be issued as the Court thinks appropriate. Another clause states that this shall be done ‘as prescribed’. In many other ways which time would not permit one to describe, this Bill contains provisions which are left to administration, procedure and regulations to determine.
Therefore I say that we have before us a Bill which is out of date. It has not improved with age. It is a Bill which has been considered in the past by many people of great legal authority in this country and finally rejected. We are asked now to produce at this stage a new series of courts ignoring the experience of the United States of America and the writings of our legal authorities over the years and to proceed in an era when this country is caught up with inflation and unemployment. It is a situation in which we are asked extravagantly to create a new system. Unemployment will not be helped by this Bill because the people who are appointed to the judiciary are not the people who are unemployed.
The ordinary people of this country who expect some degree of care in expenditure in the community at this time and who expect that we in this Parliament should be considering the major needs of the community will reject the Superior Court of Australia Bill as being an unnecessary irrelevance in this day and age. I trust that the Senate will in its discretion reject the Bill which is unnecessary, costly and altogether mistimed.
-I rise to support my colleagues in opposition to the Superior Court of Australia Bill. We have heard from Senator Wright, Senator Sheil and now from Senator Missen what I am sure are recognised as forceful arguments, eloquent in the case they have been putting forward. I do not wish to encapsulate too easily the views which have been expressed. From Senator Wright there was the jurisdic and legal approach; that does not do justice to what he said. From Senator Sheil there was essentially a practical and historical approach, and that does not do justice to what he said. From Senator Missen we have had an eminently practical argument against this proposal when viewed from the basis of whether it will do justice to the ordinary citizen. This Bill creates a court to be known as the Superior Court of Australia and it purports to make provision with respect to the jurisdiction of that court and with respect to other matters which must be attended to in relation to the establishment of any court. We in the Opposition do not believe that a case has been made out for the establishment of the court; we feel that the weight of argument and experience is in favour of investing the State courts of this country, the traditional existing courts, with all jurisdiction under the Commonwealth laws.
In the first place, there is no need for a Federal Superior Court. Apart from the fact that in the work which the court must perform it must distinguish between State and Federal laws and occasionally between State and Federal jurisdiction, litigants do not find that the justice which they receive in the courts of this country depends upon whether the court is exercising State or Federal jurisdiction or is applying Federal or State laws. Litigants suing or being sued in the State courts in those actions which may be called Federal actions have not suffered any disadvantage, nor have they enjoyed any advantage over litigants in so-called State actions. A legal system should endeavour to provide clarity, simplicity and understanding among those who use its facilities. To create two separate hierarchies is confusing. There is a risk of actions being started in the wrong court and all types of remedies being sought in a court not being available because the court is a Federal court and cannot give the remedies which are available only in a State court. There is a risk of third parties to an action not being able to be brought into the Federal court by a defendant who, having been sued, seeks relief against the other parties. These are problems which do occasionally arise in our existing system, but they are capable of rectification. They do not exist on the basis that they could arise if the Federal superior court concept were to be established. Why should we create difficulties? Why should not the purpose of law be to remove them? A citizen should be able to go to a court to have his case tried or heard and questions as to whether he is before the proper court ought to be avoided.
It has been stated- I reiterate- that the United States’ experience of a dual court system ought not to be emulated. Part of the explanation of the long drawn out litigation which we all know characterises the United States lies in the existence of State supreme courts and a federal court system. We should endeavour to avoid the United States system where, for example, after a State supreme court has decided against a litigant he may go to a federal court and attempt to have the judgment set aside, and often succeed in doing so on a ground which was not taken in the supreme court. I remember so vividly discussing this matter with judges of one of the State supreme courts when I was in the United States recently. They were concerned that, to the limits of their ability, they would try an issue- it would be decided by the full court of the supreme court- and a litigant who had lost had the ability then to move to a federal court and from a single judge obtain a writ of habeas corpus to prevent the results of the State supreme court action from being fulfilled. Then the procedure would run through the federal court. This system really benefits only lawyers. It does not benefit the citizen. It certainly does not make it appear that justice is being done.
Support for the Government’s proposal, particularly in the light of the way that the former Attorney-General and the present AttorneyGeneral (Mr Enderby) have sought to justify it, will create a division between the Commonwealth and the States and augment jealousies. Former Senator Murphy’s speeches in support of this Bill only thinly veil his belief that State Supreme Court judges were not competent to try issues arising under Federal laws. The arguments seem to be to have Federal courts as the proper forum for Commonwealth litigation where Commonwealth laws should be interpreted. The task of the courts is to do justice to all who appear before them. The State courts, apart from the High Court which is primarily an appeal court for all the State Supreme Courts, have been dispensers of justice for 70 years since Federation. They have performed their task well. I do not think it does other than to denigrate them or to detract from their status or dignity to use some of the arguments that have been advanced in favour of the Superior Court. In practical terms the Superior Court will be a costly enterprise, lt will be a bonanza for lawyers. It will involve many appointments of judges and the erection or rental of new court buildings not only in the capital cities but also in the provincial centres to which the courts must be able to go if they are to provide justice on the same basis that the State courts provide justice. There will be an immense duplication of work and effort. All this will occur without any real savings in costs or improvements in justice and with the twin risks of dissatisfaction on the part of the litigants and an unsatisfactory image for the administration of justice. We ought not to forget that the creation of a Superior Court will not mean the elimination of the existing State courts. It will mean the creation of an additional court throughout the countryside. Before that enterprise is embarked upon there ought to be the clearest and the most cogent justification for it. That justification has not been forthcoming.
I want to refer particularly to remarks which were made by Senator Everett in the course of his speech because I fear that my view of what he said was that the argument of the Opposition is a misrepresentation entirely of earlier proposals with regard to a Federal court. I am sure that the facts must be known to Senator Everett. It is true that in 1963 at the Law Convention in Hobart the then Attorney-General indicated that Cabinet approval had been given for an investigation to take place with respect to the creation of a Superior Court. In the intervening years before a statement was made in 1967 by the then Commonwealth Attorney-General, Mr Nigel Bowen, a great deal of interest in the proposal was generated. Legislation was introduced in 1968, but it ought to be remembered that the legislation which was introduced in 1968 was not totally different, although it was different in very many significant respects, from the legislation which is now before this chamber. That difference is obvious on perusal of the Bill and the differences have been highlighted in the second reading speech of the Minister for Manufacturing Industry (Senator James McClelland).
– Not in principle.
– That is why I revised the word ‘ totally ‘ which I was about to use. I agree that it is not totally different in concept because in 1968 the Bill sought to create a Superior Court and this Bill creates a Superior Court, but the jurisdiction of the proposed court in 1968 was different, and was intended to be different, from the jurisdiction which is to be invested in the court which we are considering at present. With a style which is so different from this Government, the Government in 1968 expressly allowed the Superior Court Bill to remain in the Parliament so that its ramifications could be studied and representations could be made about it.
– That Government took its time about everything.
-That Government adopted a deliberate policy which it announced, and which it had announced with regard to its earlier trade practices proposals and its earlier matrimonial causes proposals, of allowing time for the contents of the Bill to be studied and for interested people to make their representations. I mention that fact only to emphasise the difference between the procedures of the present Government and the procedures of the past Government because I believe that the procedures of the past Government in. allowing opportunity for discussion and consideration is infinitely to be preferred to the method which the present Government adopts of rushing legislation through and endeavouring to have it accepted by the Parliament before there has been adequate time for debate. That, I state, was the course which was expressly adopted with regard to the Government ‘s earlier legislation.
Of course with representations being made and with opportunity for consideration of the implications of the Superior Court all the Liberal-Country Party Government AttorneysGeneral who had considered the matter and who had initially favoured the Superior Court concept were persuaded by their own researches and study of the projects that there were not the advantages for it which they originally believed. Each one of them has stated that on the record. Indeed the Chief Justice who, when he was Attorney-General, had favoured the proposal has also indicated that he sees merit in a different type of approach today. These are facts which
Senator Everett glossed over without acknowledging. He did not acknowledge, as he should have, that the previous Government expressly stated that the earlier Superior Court project would not be pursued. In October 1 972 I made a statement in this chamber on behalf of the previous Government indicating that the Government had decided not to proceed with the Superior Court proposal and to adopt a different course of action, which in part has been adopted by the present Government. I said:
The Government has taken another look at the whole matter. With the full support of the Chief Justice -
The reference there is to the Chief Justice of the High Court - the Government has decided that it should follow the alternative course, which is available under the Constitution, of investing State Supreme Courts and the Supreme Courts of the mainland Territories with original jurisdiction in certain additional Federal matters in respect of which the High Court now exercises original jurisdiction.
– That section was quoted this afternoon.
– It was not emphasised by you in the context in which I am now using it. That is the point I am making. I continued:
The Government, on reflection, sees this alternative course as having a number of important advantages. It will provide a more integrated system of courts in Australia, with fewer technicalities and less expense to litigants. The problems of mixed jurisdiction- that is, problems arising from the existence in the one cast of both State and Federal questions- will be avoided. There will be more diversification of jurisdiction of the Supreme Courts, thus giving the Judges of those courts opportunities for experience in new and important jurisdictions. The Government sees its present proposals as an exercise in co-operative Federalism that will benefit both the States and the Commonwealth.
In that statement I indicated that the Government had taken up with the States the course of investing the State courts with a wide jurisdiction in tax matters and also with investing the State courts with jurisdiction in industrial property matters. The States had indicated their agreement with that approach at the time I made the statement. I recall, and we should all recall, that in 1973 the present Government adopted the proposal of investing the State courts with a tax jurisdiction, and that jurisdiction is now exercised by the State Supreme Court judges, I believe, with benefit to those who appear before the judges and with benefit to the courts themselves.
Whether the Government is interested in pursuing the matters with regard to industrial property I do not know. It is not an extensive jurisdiction, but it is a jurisdiction which could easily, and I think with benefit, be vested in the State
Supreme Courts. This statement represented the quite deliberate and considered decision of the previous Government that it would not pursue the concept of a Superior Court and would instead move towards what I regard as the desirable ultimate step- an Australian legal system. I believe that this is the line along which the Government should move. I was interested to hear Senator Wright indicate to the Senate today what he had indicated to some of us privately; that this is an area in which he is concerned to present his proposals. I think we would welcome the presentation of his proposals when they are developed.
- Senator, where does the Privy Council fit into your scheme of things for an Australian legal structure?
– 1 am surprised at what is I think an unnecessary and somewhat provocative remark by the Minister.
– Can you answer it?
– I indicated this morning and I indicated yesterday that I regarded the High Court as the ultimate court of appeal in this country. I indicated that when I supported the Bill for the further limitation of appeals from the High Court to the Privy Council. The Minister was here and he heard me. I wonder why he therefore asks the question.
– But you opposed the Bill which would have eliminated the Privy Council altogether from our system.
– I appreciate what the Minister says. He would know, as he was here when I spoke, that the reason for objection was the method by which the Government was proceeding, which ignored and by-passed the States and which did not provide opportunity for co-operation and consultation. In terms of ultimate objective my position was quite clear, and I think the Minister knows it is quite clear. That is by the way.
I invite the Government to indicate where the support is outside the ideology of the platform of the Australian Labor Party for its current proposal for a Superior Court. It is a fact, as Senator Everett mentioned, that in the middle 1 960s the Law Council of Australia and some of the constitutional legal bodies saw merit in the proposal for a Superior Court. He referred to that. He ought to have referred to the present attitude of the legal bodies throughout Australia including the Law Council of Australia. The Law Council of Australia canvassed the opinion of its legal bodies. My understanding is that every one of those bodies which responded, except the Law Society of the Australian Capital Territory, was opposed to the concept of a Superior Court. Indeed, even in the Australian Capital Territory, which might be expected to have some particular reasons why it would favour the proposal, there were reservations about the Government’s Bill.
I invite the Minister, if he can, to say where there is support or backing, outside the Government ‘s own political platform and its own ideology of creating central bodies and a central court, for what is being proposed. I do not believe there is any such support. The overwhelming opinion of those who are interested in this whole question is in favour of the concept which the Opposition advanced of creating an Australian legal system. The work which is to be done in that area, I believe, represents the desirable line of activity for the next few years. I hope we will see a system under which there is one hierarchy of courts, in which the role of the Commonwealth and the States can, by constitutional process, be so geared that the problems which occasionally arise, the delays, the duplication and even the disputes about appointments, can be overcome.
– If the Minister were to read the Law Council newsletter of November last year he would see that Senator Greenwood’s statement as to the opinions of all the councils is correct.
– I am indebted to Senator Missen. I hope that the Minister will take up the point which we are all directing to him. Why is the Government being so bullheaded that it must proceed with this particular proposal when the weight of opinion of those who have dealings in the courts are opposed to the concept of a Superior Court. The Opposition cannot see the need for a Superior Court. We believe that the weight of argument and the weight of representation is wholly in favour of a different system. We shall oppose this Bill.
– in reply- It is, of course, possible for lawyers to differ on the desirability of a Superior Court and to differ on grounds that have nothing to do with ideologies. I am quite sure that nothing that has anything to do with whether a person believes in the policy of the Labor Party in general or whether he believes in the policies of the Liberal Party will help him to make up his mind on whether we should have a
Superior Court. If we are to reject this’ proposition let it be on proper grounds and not on account of any of the red herrings that have been dragged across the trail this afternoon.
I find it quite remarkable that the most formidable sounding argument, and an argument that has been reiterated by every speaker on the Opposition side, against this Bill never occurred to 5 successive Liberal Attorneys-General. That is the argument which I might call the danger that the Australian legal system will be infected with what I might call the American disease. I do not suppose anybody in this chamber would contest the proposition that Sir Garfield Barwick is probably the greatest lawyer that this country has produced. I have searched through everything that he has said on this matter, including a letter he wrote to another former Attorney-General, Mr Hughes, after he, Sir Garfield, had changed his mind about the desirability of a Superior Court. I have read it closely and I cannot find a word which suggests that one of his reasons was the alleged reason that has been kicked around this chamber- the possibility of the confusion and abuse of legal process which we know occurs in the United States of America.
He gave what I think were several very honest and in some ways persuasive reasons. As I understand Sir Garfield Barwick and as I apprehend the reasons Senator Greenwood gave when he made his statement in 1972 announcing that the Government had dropped the idea of a Superior Court, the main reason of Sir Garfield Barwick and of Senator Greenwood was that another solution was available. Back in the time when the proposition of a Superior Court was dear to the hearts of Liberal lawyers- do not forget that it originated from them- the most obviously persuasive reason which they had was that the High Court was overloaded with the work in its original jurisdiction, that a backlog was developing and that the Court’s reputation for promptness and the Court’s preoccupation with its great task of interpreting the Constitution was in some way downgraded by its concern with what were thought to be lesser matters- taxation matters, matters involving patents and that sort of thing. It was thought that to have the High Court free of this work would make it a better, less overloaded and more efficient court.
When the Liberal lawyers changed their minds it was because they thought they had come up with a simpler and better solution, and that was to divest the High Court of much of its lesser work, its original jurisdiction work, especially tax work. As the letter from Sir Garfield Barwick shows, he believed that this was a solution and that the High Court would not be overloaded and therefore there was no need to introduce the concept of a Superior Court. But nowhere in the pronouncements of Sir Garfield Barwick, another fine lawyer in the person of Mr Nigel Bowen, another lesser lawyer m the person of Mr Snedden who was for a while AttorneyGeneral, another fine lawyer, Mr Tom Hughes, and with respect Senator Greenwood himself, can I find this greater in terrorem argument that we would be courting the problems that have bedevilled the American system.
I think there is a very good reason why we do not find that argument advanced in any of their pronouncements and that is that the problem that exists in the United States does not exist here. If we get a Superior Court exercising Federal jurisdiction concurrently with the State courts we have a quite different situation from that in the United States. It was touched on, although he did not draw all the inferences from it, by Senator Missen when he admitted that the State courts in the United States are not invested with federal jurisdiction; so each branch of the law in the United States is administering a different corpus of law and often there is conflict between those laws and there is a possibility for litigants to jump from one system of law to the other and make ducks and drakes of the legal system in the United States.
– They will still be able to do that here.
-They will not be able to do that. I have not heard any example given to us of how this can happen. I will give an example of that type of evil in Australia with which lawyers in Australia are familiar. I would invite honourable senators opposite to show me how the sort of situation to which I am about to refer would occur in Australia. This situation illustrates the American evil in our own system. I invite the lawyers opposite to tell me how this situation could arise here throughout our legal system if we had a Superior Court exercising Federal jurisdiction alongside State Supreme Courts also invested with Federal jurisdiction. I refer, and I apologise for doing so, to the well known problem in our country which has come to be known as the Moore and Doyle problem. Here is a case in industrial law in Australia where there is a long standing, crying evil due to the fact that we have an equivalent of the American system, that is, 2 different competing systems of law based on different constitutional powers being exercised by State courts and by Federal courts.
As all honourable senators know the Moore v. Doyle case was a case which occurred towards the end of 1968. Judgment was given early in 1969. lt was a case involving the Transport Workers Union. I apologise for referring to it again, but I have a particular familiarity with this case because I was involved in it representing one of the litigants and I had been involved in long years of litigation in this union -
– It was your argument which caused the problems.
-Let me illustrate. I believe this is instructive and I ask for your attention. There was a long drawn out faction fight in this trade union, as we know there is every day in many major unions. This was a union which suffered from the dichotomy from which all unions in this country, except purely State unions, suffer. It owed its legal existence to registration under dual systems of law. There was a branch of the federal organisation, to use the word of the Federal Act, in New South Wales and there was also in New South Wales a trade union registered under the State Act. It had the same people in it except for a few, about whom the contest was, who were deemed employees under the State legislation and therefore unable to belong to the Federal organisation. I will not go into the intricacies of that, but every member of the Transport Workers Union in New South Wales believed that he belonged to one legal body; but in law he did not. He belonged to 2 separate legal entities- the State trade union and the branch of the Federal organisation. They had the same set of union officials who purported to be the officials of each separate body but who in law were not. One faction was very cleverly advised, as it so happens by Mr Justice Murphy, as he now is, of the possibilities involved in this dual identity. One set of union officials for which Mr Justice Murphy, who was then Mr Murphy, Q.C., acted was defeated in a trade union ballot. As far as the members were concerned it was just a ballot for the officials of their union. It was one undifferentiated body as far as they were concerned.
The clients for whom I acted won the election and the man who had been elected in this ballot as secretary of the union turned up in the union office to occupy his office and was told by the defeated secretary: ‘Yes, you can have a seat over there in that corner of the office. You can stay there as long as you like, but of course you do not draw any pay. The assets belong to the trade union registered in New South Wales, of which I am still the secretary because there was not an election for that position but only for the position of secretary of the branch of the federal organisation. You go ahead. Go for your life. You are the secretary of that: organisation but I have the assets and I have the members and I will continue as before ‘. This was said by a man who had just been defeated in a ballot by my client. That contest dragged on and on for a period of 6 years until my client finally prevailed and became the secretary. The intricacies of that struggle were such that I will not attempt to go into them but it was an example. By the way, there were about twenty or thirty legal cases about ownership of the property and about a whole host of things during the intervening 6 years. This astute secretary of the union jumped from one jurisdiction to the other and even though his members did not want him, even though he lost case after case- I was winning all the battles and losing the war for my client- he remained in office to the great disgruntlement of his members and to the great damage of the union and the industry.
This is the sort of thing that happens in the United States all the time because there are competing Federal and State jurisdictions in the same fields of human activity, especially in the criminal law. The evils of the American system do not arise from anything like we are envisaging under this proposal to set up a superior court but from the fact that they are competing jurisdictions exercising and administering different systems of law. It is a false analogy, a false terror, that has been aroused in our hearts today and I claim that that is proved and reinforced by the fact that- I invite the lawyers opposite to look at the record- none of their predecessors who were concerned with this problem saw this point as a deterrent or as a reason why we should not have a superior court.
When the idea of a superior court was abandoned finally it was on the ground that the problem could be solved in another way. That is a proposition which has its merits. If we vote on this matter and we are defeated because honourable senators honestly decide, after looking at the matter, that the problem which the superior court idea was designed to solve has been solved in another way, so be it. But if this matter is going to be decided on the ground of the phoney danger of the American disease infecting the body of our law in Australia, that will be a false basis on which to decide the issue.
Leaving that matter aside, I would like to advert to some of the other matters that have been raised in this debate. I suggest that we examine the arguments advanced from time to time by the eminent lawyers to whom I have referred. I do not say that in any hypocritical way. I admit that lawyers of a different political persuasion to myself have espoused this Bill in the past and have changed their minds. I do not criticise them for having done so. I suggest that an examination of the reasons they gave in the past for support for the Superior Court Bill shows that those reasons still stand. I find it quite outrageous that Senator Wright, for instance, with characteristic hyperbole, should suggest that there is something absurd, to use his words, about this suggestion, that it is a major mistake bordering on a blunder and that the superior court idea is a monster. I suggest that to use that language about an idea which originated from distinguished lawyers on his own side does no service to elucidating the problems we are discussing today. Somehow or other he found it monstrous that we are proposing a court that will be divided into divisions. I assume he knows that there are divisions in the State courts. In New South Wales we have an equity division, a commercial causes division, a common law division, a court of criminal appeal and an appeals court all embraced within the one supreme court of New South Wales.
– These 6 divisions that are proposed are all-embracing. You are spreading a net for the whole jurisdiction.
-Nothing that Senator Wright says by way of interjection alters the fact that there is nothing monstrous in the notion of a court divided into divisions.
– Tell us about the proposed Family Division.
– I will deal with that especially. I understand Senator Missen’s interest in the family court aspect of this problem and I will deal with it before I finish my speech. If Senator Wright’s strictures on the idea of the superior court have any weight at all they apply equally to all the suggestions that have emanated from the distinguished lawyers on his side of politics whom I have mentioned because no matter what Senator Greenwood may say about the detailed differences between this Bill and the Bill introduced by Mr Nigel Bowen in 1968, the spirit and idea of the Bill are exactly the same. No comfort is to be had from the notion that a change of mind is justified because of differences in this Bill as against the other Bill. In principle this Bill is the Bill which once appealed to Sir Garfield Barwick, Mr Nigel Bower, Mr Snedden, Mr Hughes, and presumably at some stage to Senator Greenwood.
– No, I never favoured it.
-Very well, I accept that statement. I may say that unliike Senator Wright I see nothing monstrous and nothing outrageous in the proposition advanced from the Opposition side that there are better ways of handling our problems than by creating a superior court.
– If the argument as to the American system is correct it is a monstrous situation.
-Senator Wright insists on keeping the debate on the level of monstrousness. I have attempted to present it in a more balanced light and to suggest that if we are to make up our minds against this Bill we should do it for proper reasons and not for sensational, extravagant, exaggerated or hyperbolic reasons. I suggest therefore that we leave the American disease out of our consideration.
When introducing the Bill originally the then Attorney-General, Mr Bowen, said that a superior court would relieve and forestall pressures on the existing arrangements for the exercise of the Federal jurisdiction. Later it was decided that these pressures had been removed. But, as introduced by the then Senator Murphy, there were other reasons given for the desirability of a superior court than the reason of easing the burden of the High Court of Australia. It was pointed out- I think events since then have borne it out- that a new world of Federal law was opening up and that it could be expected to expand. We have seen the Trade Practices Act and we now have under debate in this Parliament the Corporations and Securities Industry Bill. It is contemplated that there will be introduced either by a Labor government or a government from the other side of politics propositions for new departures in the world of administrative law to deal with appeals from decisions of public servants and people in power in society. I see this as one of the expanding fields of law in this country. It will be Federal law and ultimately there will have to be a tribunal which will be the court of appeal. The ultimate court of appeal is the High Court. There will have to be a court before the High Court to deal with matters in the way that the Industrial Court does today, quite artificially in the light of its name and function, in regard to matters relating to the Broadcasting and Television Act or the Trade Practices Act.
There is a growing body of Federal law in this country and I believe it is desirable that there should be a court throughout the country short of the High Court which will administer and interpret this law in a uniform manner rather than have it divided by having jurisdiction vested in State courts all over the country coming up with confusing, conflicting and perhaps contradictory interpretations of that law. This was one of the things which Senator Murphy, as he then was, relied on most heavily as a justification for the need for a superior court. It was not just a matter of relieving the pressure on the High Court. If we admit that that pressure has largely been removed by, for instance, vesting taxation jurisdiction in the State courts, the reason advanced by Senator Murphy- that is, the desirability of a uniform interpretation of Federal law- in my view still remains as a persuasive reason for supporting the setting up of a superior court.
I have been invited by Senator Greenwood to explain what he calls our bullheadedness in persisting with this legislation when, as he says, the lawyers of Australia are almost universally against it. To start off with, I point out that the lawyers of Australia are not almost universally against it. I know many lawyers, whose opinions I respect, who are still in favour of the scheme. I must confess that the established legal bodies in this country have swung around in opposition to the Bill. But that does not bear too heavily on my continuing to support it. I have come to know that lawyers are a fickle, conservative and very easily influenced lot, and a very powerful lobby. One of the most powerful lobbies in the country has been at work over the last couple of years to change lawyers’ minds about this matter. I refer to the judges ‘lobby. I have been lobbied by very persuasive and intelligent State judges who for obvious reasons I will not name. I am not suggesting for a moment that there is anything improper about judges lobbying on matters which they think are important to our legal system.
Let us not be unreal enough to think that judges are completely immune from politics, that they do not attempt to ensure that a system of justice, as they see it, is perpetuated and that they do not resist change which they think involves some territorial encroachment. I do not think it is altogether without some significance that the opinions of Chief Justice Barwick are slightly different from the opinions of Attorney-General Barwick. Chief Justice Barwick has territory to defend just as judges of the State supreme courts have territory to defend. I am not imputing any dishonesty to them. I am suggesting that they have reached their conclusions about this Bill for reasons which are not unmixed with notions of maintaining their own status and position in the world. Their opinions fan out into the legal profession.
A very persuasive and very loftily placed judge cornered me one night and gave me a lot of the arguments which I have heard, strangely, repeated in this chamber today and by conservative lawyers all over the country. I repeat that, in saying that, I do not impute any bad motives to anybody who suggests that we should not have a superior court. I freely acknowledge that it is an arguable proposition. I ask nothing more than that it be decided on proper grounds and not on false grounds. Finally I advert to the question raised by Senator Missen who sees something rather extraordinary about the timing of this debate. He says, truthfully, that the Superior Court Bill has been on the notice paper for about 6 months. He asks why it is being debated now, especially as the Family Law Bill which cuts across some of the terms of the Superior Court Bill is being debated at this moment.
When Senator Murphy was here he frequently urged me to support him in having the Superior Court Bill moved up the notice paper and debated straight away. Whatever honourable senators opposite may think of the way the Australian Labor Party works, I point out that although Senator Murphy was Leader and Attorney-General he did not throw his weight around in order to have the Bill debated. He wanted it debated but he discussed it with his fellows. I constantly urged him not to have the Superior Court Bill debated while the Family Law Bill was still in abeyance, and for much the same reasons as those advanced by Senator Missen. The concept of a family court which the Senate Standing Committee on Constitutional and Legal Affairs came up with I believed should be decided upon before we proceed with the Superior Court Bill. That was the reason. There was nothing sinister in the Superior Court Bill being pushed down the notice paper instead of being debated, but I firmly believe that this situation has changed.
I am still hopeful that the Family Law Bill will be passed but I am by no means certain that it will be passed. Not only that but also I believe it will take a long while before it emerges from the other place. When it does emerge, even if it is in some sort of shape to be worth nurturing and preserving, it will come back here with proposed amendments. If it ever becomes law it will not be tomorrow- it will be some time in the future. I believe that the need for deferring indefinitely the debate on the Superior Court Bill has disappeared. I believe that if the superior court is a worthwhile proposition it is worth carrying this
Bill now and amending it later, in the event that the Family Law Bill is carried, in the light of amendments which will be necessary when the Family Law Bill is carried.
– Very curious.
– I have attemptedhonestly to give Senator Missen an explanation as to why this Bill is being debated now and why it was not debated in the past. That is a true explanation, according to my lights, of why the Bill was not debated in the past and why it is being debated now. I think that is about all I can usefully say in reply to what has been put in this debate. I do not think there is any point in regurgitating the conflicting statements about this Bill which have been made over the years from the Liberal side of politics. Unlike many people’s notions of the attitudes of lawyers, I believe that politicians are entitled to change their minds. If they change their minds they should not be dogged by the fact that they once held a different opinion. I do not hold it against the Liberal side of politics that today they are espousing an attitude towards this Bill which is different from the attitude they espoused when they pioneered a similar Bill in the past. I think that is irrelevant. The only question with which we should be concerned is whether today this idea of a superior court serves the needs of society as it is now and as it is emerging. I believe that it does. For those reasons I commend the Bill to the Senate.
That the Bill be now read a second time.
The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)
Question so resolved in the negative.
-I seek leave to make a short statement in relation to arrangements between the Whips.
-Is leave granted? There being no dissent, leave is granted.
– By arrangement between the Whips in the Senate, Senator the Honourable Sir Kenneth Anderson will not vote in divisions this day to compensate for the vacancy caused by the resignation of the former Attorney-General.
Senator WRIEDT (Tasmania- Leader of the
Government in the Senate and Minister for Agriculture) (5. 1 )- I move:
By way of background to this Bill, I will briefly recapitulate on developments which took place last year in relation to the Public Service Acts Amendment Bill 1974. That Bill was introduced in this chamber and during the Committee stages amendments were carried, on Opposition initiative, which would have had the effect of inserting certain provisions relating to oaths and affirmations in the Public Service Act. The amendments were not acceptable to the Government, and a further amendment omitting them from the Bill was carried when the Bill came before the House of Representatives. The Bill was then returned to this chamber, where the amendments made by the House of Representatives were not agreed to.
With one exception the present Bill is, apart from formal changes, identical with the Public Service Acts Amendment Bill 1974, as that Bill was previously agreed to by the House of Representatives. That exception concerns certain minor amendments to clause 12 which, as originally drafted in the 1974 Bill, provided generally for the transfer of staff to the Public Service Act employment with a Department or with an Australian authority whose staff are employed under that Act. Proposed section 81ZN in clause 12 has been redrafted so as to ensure that the division can be utilised to transfer staff to Public Service Act employment with an Australian authority which already has some staff employed under the Public Service Act and others who are not so employed. It will also be possible, under the redrafted clause, for the non-Public Service Act staff of such an authority to be transferred to Public Service Act employment with the same authority. Both of these situations are likely to be relevant to the proposed Capital Territory Health Commission.
I think honourable senators should be made aware of difficulties which will arise if this Bill is not passed in the near future. Several clauses are, for example, relevant to the proposed Capital Territory Health Commission, which is expected to be established by ordinance and whose staff will include personnel presently employed under the Public Service Act with the Health Services Division of the Department of Health. I have already mentioned clause 12 in this regard, which will probably be needed at the time of, or shortly after, the establishment of the Commission. Additionally, clause 6 will enable the holder of an office established by ordinance to be vested with Permanent Head powers under the Public Service Act, whilst clauses 1 5 to 20 will extend the protections afforded by the Officers’ Rights Declaration Act to officers employed under the Public Service Act who become employees of an authority established by ordinance. These provisions are needed to ensure the effective establishment of the Commission without significant disadvantages to the staff concerned. Clause 12 is also needed to ensure the effective transfer to Public Service Act employment, as part of the defence reorganisation, of staff presently employed under the Supply and Development Act and the Naval Defence Act. The oaths and affirmations issue was fully aired when the 1974 Bill was before Parliament, and I reiterate the Government’s opposition to any change. The substance of this Bill already has the Opposition’s support, and I trust that the present Bill can be passed through Parliament without delay. I commend the Bill to honourable senators.
Debate (on motion by Senator Greenwood) adjourned.
Debate resumed from 20 February on motion by Senator Wriedt:
That the Bill be now read a second time.
– May I suggest that the Minerals (Submerged Lands) Bill and the Minerals (Submerged Lands) (Royalty) Bill be debated together?
-Is it the wish of the Senate to debate both Bills together? There being no dissent, that course will be followed.
– In substance, these Bills are coming back for debate in the Senate for the fourth time. I will recapitulate briefly the history of the Bills, though it is probably well known to all honourable senators. In 1973 the Government introduced a Bill known as the Seas and Submerged Lands Bill which was in 3 parts. Part III of that Bill contained provisions which were virtually in the same terms as the present Bill, known as the Minerals (Submerged Lands) Bill, that we are debating. Parts I and II of the earlier legislation contained the well known claims to sovereignty over the off-shore areas of Australia which are now the subject of challenge in the High Court of Australia and which will shortly be heard and determined by that Court.
The Senate, on the second occasion on which that Bill was before it, passed Parts I and II, which I have described as the claims to sovereignty, but defeated Part III, which contained the mining code. It was the Opposition’s initiative at that time which led to the deletion of the mining code from that legislation. Our reasons for doing so were then stated by Senator Greenwood who was speaking on behalf of the Opposition in relation to the Seas and Submerged Lands Bill.
Subsequently, last year, the Government introduced as a separate Bill- a Bill similar to the present Minerals (Submerged Lands) Bill- and the Opposition opposed it and defeated that Bill in July last year. As I said, we are now faced with in substance the same Bill for the fourth time. The reasons which were given by Senator Greenwood in 1973 when he moved the amendment to delete Part III of the Seas and Submerged Lands Bill, which as I said was in substantially the same terms as this Bill, and the reasons which I gave in July of last year here when we opposed for the first time a Bill in similar terms to that Part III when it was presented as a separate Bill, were varied, but I think most cogent; and those reasons still pertain. As a result, it is the intention of the Opposition once again to oppose and to vote against this Bill and the Minerals (Submerged Lands) (Royalty) Bill which is being debated cognately with it.
The first reason that we have for this action is based on the history of this legislation. As I said, the legislation originated as part and parcel of a claim by the Commonwealth Government to sovereignty over the off-shore areas or continental shelf of Australia. I refer to the areas seawards of low water mark right around the Australian continent, extending to the full limits of the continental shelf. That was a major claim by the Commonwealth Parliament and one which brought it into very direct and at times very bitter conflict with the States. That issue is to be resolved, as indeed such issues can only be resolved ultimately under our federal system, by the High Court of Australia. What will be done in regard to the continental shelf and the areas that lie below low water mark around the whole of the Australian coastline and what laws will be applied are matters which will undoubtedly exercise great concern and give cause for a great deal of thought and debate once the High Court of Australia has determined this question of sovereignty.
We find it extraordinary that the Government should be pressing on with this exercise of sovereign power, namely, to establish a mining code for the continental shelf at this time when the High Court of Australia has not yet determined the issue of sovereignty. It seems to be simply and solely some effort on the part of this Government to build up a storehouse of Bills rejected by the Senate, to be held against the Senate, and possibly to be used as grounds for seeking a double dissolution.
There seems to be no practical reason at this time why the Government should be insisting on going on with this legislation except, as I said, for its own immediate political reasons and perhaps to try to continue to maintain its alleged argument of so-called obstruction by the Senate which it seeks to create and emphasise statistically by building up a large number of rejected Bills.
These powers cannot be exercised by the Government until the High Court determines that the Commonwealth Government has the sovereignty and the power to exercise the powers that are contained in this Bill. However, to the Opposition, I believe, this is only a most minor consideration. Our opposition to this Bill is based on very much deeper, much wider, but more philosophical reasons than that. This Bill is one which arrogates to the Commonwealth Minister for Minerals and Energy the sole power of deciding who will obtain all forms of permits to explore for minerals, to produce minerals and to market minerals on this whole vast new province for mineral exploration and development which undoubtedly exists on the continental shelf. That power is to be given wholly and solely and in an arbitrary manner to the Commonwealth Minister for Minerals and Energy.
We in the Opposition believe that the exercise of power over this new province, which will be a vast and possibly a very rich province of mineral development for Australia, is one which should be exercised in co-operation with the State governments and parliaments. We have in Australia pioneered a system of co-operative federalism in regard to these off-shore areas and in regard to the exploration and development of our oil and gas resources. The legislation which was passed by this Parliament and at the same time by all State parliaments in 1967 has been a significant development in the notion of cooperative federalism, both in its concept and in its administration, until recently when the whole idea has really been put at risk, if not destroyed, by the attitudes, actions and inactions of the present Minister for Minerals and Energy (Mr Connor). But the Opposition believes that this approach as enshrined in what is known as the Petroleum and Submerged Lands Act, which is more popularly known as the off-shore oil legislation, is a model which should be followed generally in regard to the exploitation of off-shore areas. We believe that it would not be either practical or appropriate for the whole power in relation to this area to be exercised by the Commonwealth Minister alone without regard to the interests of the States.
It is to do just that- to disregard the States completely- which this Bill has as its objective. We take that view because we have a very fundamental belief in the Federal system and in the working of that system in a co-operative manner; but we also take that view because of the very practical situation which arises when endeavouring to establish a purely Federal system of law and administration in relation to these areas without regard to the position of the State Parliaments and their jurisdictions. When all is said and done, as has been pointed out in previous debates on this legislation, we may well have situations where mineral deposits are in fact running across the so-called artificial boundary of the low water mark. One of the most obvious examples that comes to mind is the sand mining operations which take place in many cases on beaches in Australia. We may well have coal seams or deposits of oil or gas located partly offshore and partly on-shore but forming the one deposit. What sort of a system of law are we to have where the rights to part of that deposit are to be governed by State laws and the rights to another part of that deposit are to be governed by Federal laws?
The other practical situation which arises is one of logistics in regard to any of these operations. In some cases where there is an oil or gas field way off-shore it may be practical to service it- although that is even hard to imagine; it certainly does not occur in practice today- without regard to access to it from the adjacent land area. But almost inevitably the development of any of our off-shore mineral resources will involve the use of the adjacent land mass and the jurisdiction over that area, of course, is that of the States. So for those 2 practical reasons alone it is imperative in our view that there should be co-operative arrangements between the Federal and State Parliaments, and a system or regime of co-operative law and administration should be established in order to exploit the off-shore mineral deposits around Australia.
The next objection which the Opposition has is to the nature of this legislation. It is one which gives complete power to the Commonwealth Minister for Minerals and Energy. We have seen the way in which the present Government and the present Minister for Minerals and Energy (Mr Connor) are approaching this whole question of off-shore mineral development, particularly in relation to the exploration and development of our oil and gas reserves which have been established in parts of the continental shelf. This Bill does not lay down what policy is to be followed; it simply gives power to the Minister to do what he likes. We are asked to pass this type of legislation without being given any clear idea of the policy which the Minister will pursue in exercising this power. We can only glean what it is from the way he has behaved and from certain things he has said from time to time. But I would say that the attitudes which he has expressed and the actions which he has taken in relation to the administration of such powers as he has under the present laws- the Petroleum and Submerged Lands Act and other Acts which have been passed by this Parliament, namely, the Pipeline Authority Act and the Petroleum and Minerals Authority Act- do not give us any reason to believe that these powers conferred by this Bill would be wisely exercised. Certainly it is most unlikely that they would be exercised in the interests of this nation.
What we are being asked to do here is to give these vast powers to a government and a Minister who in our view have caused some of the most retrograde actions to be taken in relation to the development of our off-shore resources that one could imagine. We have been reduced by this Government’s and this Minister’s so-called policies and actions to a state where there is now practically no exploration for oil or gas in the offshore areas of Australia. I think we will be lucky if there is one rig operating off the north-west shelf of Australia in the coming months. Under the encouragement of a Liberal-Country Party government to explore in this area, Australia has developed and now enjoys 70 per cent selfsufficiency in oil- a situation which is now being reversed and by 1985 we will have to import 70 per cent of our oil requirements. Day by day the situation is becoming more a matter of concern and within the next few years it will become desperate unless the policies of this Government and of this Minister are reversed.
Having seen what he has done and said in regard to oil and gas exploration, why on earth would this Senate, and certainly this Opposition, be expected to give him the sorts of powers he is seeking here in regard to the exploration for and the development of minerals generally on the continental shelf. If we were in government we would not propose this type of legislation for this area. We would seek to deal with the matter in co-operation with the States. Even if we were minded in any way to let this legislation pass, we certainly could not be expected to do so when we are so deeply concerned about the way in which the Minister might exercise such powers.
As I have said, the Minister’s attitude towards oil and gas exploration is that far from seeking to encourage it, as is desperately needed, he has been discouraging it to the extent that exploration has been brought almost to a standstill. Because of the attitudes he has taken towards explorers, the people who have risked large sums of money, organisation and initiative in this field, no new explorers could have any confidence that if they exercised initiative and invested large sums of money they could enjoy any fruits of their enterprise and investment. We have even reached the stage where the permits or rights that have been given by previous Federal and State governments under the Petroleum and Submerged Lands Act are now put in doubt because the Minister is taking the attitude that he will not consent to a renewal of these permits until after the High Court makes its decision on the claim of sovereignty.
I have had reason on previous occasions to refer in the Senate to this attitude of the Minister and the serious consequences it is having. There is no reason in the world why the renewal of permits which people are entitled to have under existing legislation of this Parliament should be delayed in this way because of the claim to sovereignty which has been made and which is the subject of the High Court hearings. But what it really means is that members of this Government and the Minister for Minerals and Energy, Mr Connor, have it clearly in mind that if the High Court upholds the Parliament’s claim to sole sovereignty over this area he intends then to abrogate the existing legislation. In effect, he intends to dishonour the existing arrangements and agreements which have been made with the companies and to set up his own regime under his legislation, if he can get this Parliament to pass it. In other words, he would set up some arbitrary authority to operate in the whole of this area as he is seeking to do under this Minerals (Submerged Lands) Bill we have before us this afternoon.
In that atmosphere and with that type of approach, how can we expect any companies, whether they be searching for oil, gas, or minerals generally, to be prepared to invest the very large sums of risk capital which are required to explore these areas and to determine their mineral potential? Of course, the Minister has unfolded his other policies also. There is to be a National Pipeline Authority, and in particular, a Petroleum and Minerals Authority. It is quite clear that his intention is that if he has these sorts of powers in relation to the off-shore areas preference will be given to the Petroleum and Minerals Authority in the selection of the choice areas for exploration. Exploration is being done now by private companies at great risk. That exploration may well be taken over and the advantage given to the Petroleum and Minerals Authority for the development of such areas rather than the development being given to those who have taken the risk and invested the money.
With this attitude in mind, it becomes quite clear that the whole exercise of the Government’s Pipeline Authority, the Petroleum and Minerals Authority and this type of legislation for the development of minerals in the off-shore areas- no doubt it will be followed by similar legislation for the control of oil and gas exploration on the continental shelf- is part and parcel of the socialist Government’s philosophy of monopolising the exploration and development of minerals for Government intrumentalities and to eliminate, or certainly to discourage, private investors in this area. How this Government can believe for one minute that it will find the funds for the exploration and development that is required in this area is beyond my imagination.
– You have not got any.
– Perhaps the honourable senator’s imagination might be able to do something with it. The Government has produced its Petroleum and Minerals Authority as the salvation of our problems, particularly in relation to oil exploration in Australia. But with what has it backed up the Authority? It has backed it up with a vote of only $50m. That amount for this purpose is an absolute drop in the ocean. It is estimated today that oil exploration alone in Australia would demand an annual investment of at least $300m. Yet all that the Government is prepared to back its much vaunted authority with is $50m. Not one cent of that money is being spent or is proposed to be spent on mineral exploration. We have seen the way it has been spent in that area. It has been spent by entering into doubtful agreements and buying shares in various existing mineral developments where the risk has been taken and developments have been made. The Government is spending this money by buying out overseas shareholders in these developments. In fact, what it is doing is using this money to advantage well-established and well-off overseas companies rather than spending the money on the much needed exploration, particularly for oil and gas. Presumably, it would be the intention under this Bill also to explore for minerals in the off-shore areas.
That is the hopeless pattern of this Government’s policy in relation to these vital matters of minerals and petroleum exploration in Australia. As I have said, the Bill before us and other matters on which I have been speaking deal particularly with petroleum and mineral exploration in our off-shore areas. It is agreed on all sides that it is the off-shore areas of Australia which are most likely to be successfully explored for oil and gas. The urgency of this matter does not seem to be appreciated by this Government. It is for those general reasons that we are not prepared to give such powers as this Bill contains to a Government whose policies are not positive and constructive in these matters. They have themselves led to this great diminution of activity in this vital and sensitive area.
– I wish to make a few observations on the Bills before the chamber at the moment, but after listening to Senator Durack ‘s boring speech of supposition and hypothetical political hypocrisy I trunk we ought to get back to some of the facts of the Bill. The 2 Bills, the Minerals (Submerged Lands) Bill 1974 (No. 2) and the Minerals (Submerged Lands) (Royalty) Bill 1974 are being debated cognately and I assume that separate votes will be taken on the 2 matters. The Bills were introduced into the House of Representatives on 1 1 February 1 975 and into this chamber on 20 February 1975. When the Leader of the Government in the Senate and Minister for Agriculture (Senator Wriedt) introduced the legislation he reminded all honourable senators that it was identical to the measure which was introduced into this chamber on 23 July 1974 and which the Senate refused to pass on 24 July 1974. He also mentioned that the Minerals (Submerged Lands) Bill constiututed Part III of the Seas and Submerged Lands Bill which was introduced into this chamber on 22 May 1973 and that this Part was deleted when the Senate passed the Bill with amendments on 27 November 1 973. We should note that it was held up from 22 May 1973 until 27 November 1973 in this chamber before being effectively rejected. The Minister continued:
The mining code embodied in the Bill will provide a legal framework and establish rules governing the orderly exploration and exploitation of our off-shore mineral resources.
The salient features of this Bill and the associated royalty Bill were outlined when the measures were previously introduced. We do not want to go over much of the discussion that took place originally. I think it is clear to this chamber and to every Australian that the Opposition raises these objections because of its continuing policy of frustration and delay of Government business in the Parliament. We have to recall that this legislation was delayed for many months in 1973 before finally being rejected. It then went before a Joint Sitting of the Parliament where it was passed. Not being content with having a government in office that had been returned twice by the people at general elections, that had introduced this legislation as part of its policy when it went to the people of this nation and that had passed this legislation at a Joint Sitting, the Opposition then decided to challenge the constitutionality of the legislation in the court. We have taken the opportunity of again introducing the legislation into the Senate and again it is obvious that the Opposition is out to wreck it. This is not the only legislation which the Opposition has attempted to frustrate. The setting up of the Darwin Reconstruction Commission which is concerned with the lives of thousands of people is being held up by the Opposition in order further to frustrate the people of Darwin.
– Nonsense. It was passed here last night.
-What I have said is right. The Opposition is quite delighted to hold up not only legislation of that nature but also our health
Bills, while thousands of people in this country are suffering ill health. (Quorum formed.) I assume that Senator Wright called for a quorum because when he is speaking he cannot get people to stay in the chamber. I would like to think that I have a wider audience, but I suppose that there must be a little bit of action around the chamber for someone who is on the verge of retirement. This is a continuing saga of frustration by the Opposition Parties. They have determined to hold up and, in spite of protestations from the other side of the chamber, have held up legislation which is continuing the misery of the Darwin people. The Opposition parties have held up all the health Bills that we have attempted to put through.
-Senator Wright may need Medibank some day so I suggest that he does not enter an across-the-chamber discussion about it. I gather from the final remarks of Senator Durack who led on behalf of the Opposition, that he thinks the Government is putting money into companies whose shares are not of much value. I think it is a pretty poor attitude for the Opposition to use this chamber to criticise fairly substantial companies in that way. Senator Durack criticised the Minister for Minerals and Energy (Mr Connor), but the Opposition never had a Minister with this portfolio. The Opposition’s policy was made for it by the multi-national oil companies in the main and by the multi-national developers. It would have been useless for the Opposition to have had a Minister who was responsible for fuel and energy because he would have had no policy to implement. If he had had a policy to implement he would not have been allowed to implement it; he would have been told by the companies what to do.
With regard to the other criticism concerning the taking away of a spirit of co-operation from the States, I think even Senator Durack in his most sober moments- I say that politically and not alcoholically- would recognise that the spirit of co-operation is not taken away by these 2 Bills. I think Senator Durack would do well to remember that people in his Party have been hounded out of office because of their views on this sort of legislation: I include a former Prime Minister who fell politically because he believed in the type of legislation that this Government is now trying to produce. Mr Gorton was hounded out of office and other people in the Liberal Party have had to make a political sacrifice because they were not prepared to take the direct orders of the multi-nationals, because they wanted to see Australians share in the mineral wealth of this country. That is why they were reduced in office or moved out of the Liberal Party.
It would be interesting to find out who is standing over the Liberal Party today. It is obvious that there is no great love affair between the Liberal Party and the National Party or the Australian Country Party because the Leader of the Country Party (Mr Anthony) has been demanding that the price of Australian produced oil be increased as soon as possible. It is hypocritical criticism when the spokesman for the Liberal Party says that only one rig may be operating now on the North West Shelf. Let us get down to the facts. The group with which he is associated is making sure, for political purposes, that too many rigs will not be working around Australia. The present Labor Government is the only political Administration that has tried to share Australia’s mineral wealth with the Australian people. We have done this by commencing to construct a gas pipeline that will bring gas to Sydney. I have said in this chamber previously that a very well known international oil organisation was able to prevent the people of Sydney from getting natural gas for a period of almost 5 years.
I do not wish to detain the chamber in its consideration of these Bills which ought to have been passed automatically when they were reintroduced into the Parliament but I would like to make a couple of more pertinent points. I assume that the spokesman for the Liberal Party had the full consent of his Party when he said that if these powers are granted to the Commonwealth they may be misused. That is a lot of political poppycock, because there are States in this country today misusing the powers they already have. I refer to my own State of Queensland, and to Western Australia and Victoria. The Opposition spokesman made references to sand mining and how the veins of sand would run out to sea and what have you. Some companies are operating with the blessing of the State. They pay no compensation to the State. They rip out the rivers, rip up the beaches and they are supposed to make some sort of repairs to the damage they do.
In one case the Premier of Queensland said that after a certain time certain leases would lapse. They have not because a night-time agreement was made in the middle of the cane paddock to allow this company to continue wrecking the environment of the area. Honourable senators opposite know as well as I do that the States may have the laws but like price fixing and everything else, few of them have the political guts to put them into operation. The States I have named are three of them concerned. I am reminded of the matters associated with the Great Barrier Reef. That debate has been carried out in this chamber for a long period. People were standing beside the Opposition, when it was in government, demanding the right to be able to explore the Barrier Reef for oil. For all practical purposes that right has been obtained, unless we can get legislation of this nature carried in this Parliament. The Premier of Queensland has shares in companies that had leases in the Barrier Reef area. If honourable senators opposite think that he is politically honest they had better have another look at him. He is an investor and a shareholder in a whole number of mining groups. He has misused his political power in many instances in order to obtain this shareholding.
I raised raised this matter at the Joint Sitting of Parliament. I can recall one of the gentlemen from the north-west of Queensland saying that I must not raise tax dodging or anything like that in which the Premier may have indulged because it was the Premier’s personal life. Anybody who wants to buy the wealth of this country honestly, good luck to them, but if people buy it dishonestly then the watchdogs, and that includes the parliaments of Australia, ought to be able to speak up on behalf of the people. Perhaps it might be significant that that same man is very touchy. This was evidenced the other night when he came over to this chamber and wanted to start a Jimmy Sharman boxing tent in the Senate.
These 2 Bills ought not to be amended or rejected. They ought to be carried in their present form, but that is unlikely to happen because of the huge amounts of money that are going into the pockets of some people in the Liberal Party and certainly are going into their campaign funds.
– I raise a point of order under standing order 410 in relation to having been, I think, misunderstood by Senator Keeffe. Senator Keeffe referred to a comment I made regarding investments by the Petroleum and Minerals Authority as being doubtful investment. He suggested that I was reflecting thereby on the quality and the value of the shares in companies and on the present vendors of these shares. I realise that may have been a permissible interpretation of what I said. What I had in mind by using the word ‘doubtful’ was the doubtful wisdom and power on the part of the Petroleum and Minerals Authority to be entering into these contractual arrangements when its powers and even its existence are under challenge. The whole thing, as a result of that challenge, may have to be unscrambled at some future date.
Sitting suspended from 5.49 to 8 p.m.
– Just before the sitting was suspended for dinner Senator Keeffe was speaking on the Bills before us. His speech concerned, as it seems to me it often does, something of a denigration of personalities of the Australian Country Party, of multi-national corporations and, for good measure, the other Opposition Party, the Liberal Party. I cannot really see the significance of these things as yardsticks concerning or being applicable to the legislation we are discussing tonight. I understand that the Deputy Prime Minister (Dr J. F. Cairns) has just recently been overseas seeking somewhat desperately investment from international operations. So I would assume that the Government realises, to its credit, that all that is multi-national is not necessarily bad. Multinationalism in the economic sense must surely be related to internationalism in the political sense. I believe that the age of nationalism is the Western world at least, in marked degree, ended with the 19th century, and hopefully we are in this era, certainly in this the latter stages of the 20th century, in the era of internationalism. Insofar as a measure of multi-nationalism means an involvement by other countries and other interests, there must of necessity be a measure of security. I believe it is the province of our Government to see that there is a proper measure of control over multinationals or whatever in the circumstances of economic and political development.
To return to the Bills which are before us- the Minerals (Submerged Lands) Bill and the associated royalty Bill which are being discussed tonight in a cognate debate- let me say that it seems in the first place somewhat strange that rather than allowing just 3 months to pass before reintroducing these Bills to the Senate there has been a period of 7 months. Indeed, they are being reintroduced to the Senate in some urgency. It seems to me that today we are being confronted by a trickle which is becoming a stream of Bills which may well be considered Bills for a double dissolution. One would get the impression that the Government has set about a policy to stockpile such Bills. I believe it should be a significant warning to the people that this sort of thing is happening, because a judgment that followed the Joint Sitting of the Parliament in 1974 suggested that one Bill, 6 Bills or any number of Bills may come before a Joint Sitting of the Parliament. If it is the view of the Government that it may following an election find itself in a position to put a mass, a stockpile, of Bills before such a Joint Sitting, then in fact the Australian people would be witnessing a total reversal of the social and political history of this country at one fell swoop. I think it is significant that we should observe that this sort of thing would appear to be going on.
Our opposition to these Bills which we opposed on former occasions is, I consider, somewhat stronger tonight than it has been on those previous occasions. It is stronger because we are aware as the weeks and months have passed by that there is growing in the potentially great minerals and petroleum industries a doubt and despondency which is widespread and of great detrimental effect to the entire Australian population. There is a measure of doubt, despondency and uncertainty which I believe, and which I am sure many other people believe, is associated with an element which tends to make people think of nationalisation and tends to make the people concern themselves more and more with theory of centralism. So we see that doubt and despondency are bringing about in the minerals industry a marked level of unemployment. Because of the loss of productive capacity it is adding to the inflation that cripples this country. The doubt and the uncertainty are paramount to a loss of production, a loss of research enterprise and a loss in the advance of development in these most important industries. Perhaps it is somewhat ironical to recall that in these circumstances, as a result of the initiatives of the Government, it has not been the very large mining enterprises that have been worst hit, although of course they have been severely hit, but ironically enough it is the smaller Australian enterprise that has borne perhaps the most severe penalty from the attitudes and policies of the recent months. The Bills deal with minerals other than petroleum, which finds its area of involvement in the Petroleum (Submerged Lands) Act. One wonders why the difference in approach that seems to be apparent in this legislation relating to minerals. I believe the difference is summed up in a few words from the second reading speech of the Leader of the Government in the Senate (Senator Wriedt) when he said: . . the passage of this Bill will again emphasise the importance we attach to the exercising by the national Parliament of its sovereign rights over the off-shore area in relation to off-shore mining activities.
I suggest that this has about it a large measure of presumption, because the Petroleum (Submerged Lands) Act is at this moment the subject of challenge before the High Court of Australia.
It would appear that it may well have been advisable for the Government in this circumstance, having waited not 3 months but 7 months, to wait yet another two or three months and have in its hands the judgment of the High Court. With this in its hands it could legislate as it saw fit. Why is there this urgency? Certainly since 1 967 there has been a large element of joint administration between States and Commonwealth over the petroleum exploration and development of off-shore areas. It is that sort of joint administration that has heralded in one of the most exciting periods in the research and development of minerals and petroleum in this country’s history. This policy of co-operation and joint administration has not been followed in recent times and I suggest that it is because co-operation is the hallmark of federalism. Co-operation is in no way related to the activities of this Government. In virtually every social and economic theatre the theory of the Government, as I mentioned earlier, has been centralism. The concept of federalism is totally alien to the concept which sees control from a government point of view as being synonymous with ownership. This is the problem which confronts our country and particularly the mining industries at this time.
I believe that, regrettably, this Bill promotes a form of confrontation instead of co-operation and adds to the feelings of insecurity and doubt. Insecurity and doubt have arisen and have brought with them in the mining industry a severe degree of inactivity in what purported to be a very great period of development and achievement. Those feelings have brought that about and, as a result, we have seen a severe loss in the overseas earning capacity of this country, once again highlighting the dangers to our economy and our living standards. There is an almost desperate drain on the overseas earning capacity of this country and reserves are tumbling at a greater rate than we have seen in a generation.
The insecurity and doubt that have surrounded the activities and judgment of the Government have added to the financial problems of the States. The States are financially involved in these mining enterprises and royalties and other methods of raising finance which can have a really significant effect on the States are threatened because of insecurity and doubt. The insecurity and doubt which are the products of policies we have seen implemented in the last 2 years have affected the mining industries, not to mention other people across the board who are involved in this serious area of unemployment. We have seen leaving our shores many members of the geological, engineering and scientific professions whose expertise is essential to the research and development of the mining industry in Australia.
Why should we perpetuate the problems associated with off-shore rights as between States and Federal institutions, problems that still exist today in the United States of America and Canada? There is no reason why we should perpetuate this situation in our country. Indeed, we have virtually a 7-year old solution in the Petroleum (Submerged Lands) Act. Because of that solution and as a result of extreme and sensible co-operation between the States and the Federal Government we saw by the end of 1 972 a period of exciting development and research in this most important industry in Australia.
In December 1972 we saw what I believe was deliberate action to destroy the spirit of cooperation. It was deliberate action because those who took it believed in the theory of centralism and that was one of the methods by which they could achieve that purpose. Consequently we became aware in this industry of the ripping away forthwith of taxation deductions and of various other incentives which were important because they were basic to the establishment of an industry with an immense capacity and an exciting future in the economy of this country. From the attitudes and decisions adopted 2 years ago we have seen a tragic drop off in activity in the fields of research and development. Senator Durack covered this question thoroughly and completely earlier today and suggested that it is probable that by next month there will be perhaps only one rig, perhaps none, searching for oil around the Australian shore. This is a tragic circumstance when one remembers that it is not so many years ago that the number was in excess of 100 rigs.
There has to be a measure of real co-operation in mining for minerals such as coal or for petroleum because in the on-shore areas it is totally the province of the sovereign States. When seams or petroleum bearing shale extend beneath the waters around the coastline it is reasonable to assume that the same sort of attitudes and guidelines should pertain. If this sort of legislation becomes law it is conceivable that once a mining operation leaves the State ‘s own shore and the State’s own ground it will have to seek permission from the Federal or national authority. It literally could find itself working for that authority under rules and conditions which are alien to those that may well have been serving it for a significant period of time. I reiterate that there is a need for an immense amount of co-operation if this great industry is to get on its feet again and contribute all that it can add to the economy and society of Australia.
Under the pre- 1 972 situation, as a result of the attitude that had prevailed, we saw circumstances in which in a very short time this country had reached the point where it was producing 70 per cent of its fuel requirements. This was a magnificent achievement of extreme importance to the Australian economy. I hate to contemplate the situation if today we were faced, as Japan recently has been faced, with importing virtually all our energy requirements. The unemployment and inflation in this country would be many times worse if that situation arose. I have to point out, as Senator Durack pointed out, that by 1980 we will be producing a mere 30 per cent of our requirements unless we find new reserves, and that may well involve us in finding another $400m or $500m purely to purchase foreign oils. In such a situation the production of goods within Australia must fall and the inflationary circumstances must increase.
It is conceded by most authorities that the offshore minerals industry has an exciting future and is of very great potential in this country. To find minerals off-shore and to develop them will involve very great financial expenditure, the use of expertise and knowledge, and the employment of many highly-trained people. In this circumstance there is the involvement of high risk capital. I believe that one of the circumstances that has cast doubt and concern over this industry has been the enormous shadow of the Petroleum and Minerals Authority. It is like some giant, privileged monster which is liable to take over, and it is fed, mind you, by the resources of the Treasury, by grants from taxpayers ‘ money and by working capital with no particular term and at extremely low interest rates.
In this sort of circumstance where there is the constant shadow of a massive, privileged giant taking over the area of research and development there can be little hope that the great minerals industry will prosper and rise again. I conclude by saying that I believe it is imperative that this legislation should be rejected. It is imperative because the legislation is the aftermath of a circumstance in which doubt, insecurity and virtual non-action has crept into what must surely be one of the areas of greatest achievement and of greatest potential in the Australian community.
.- One has learnt to expect sincerity from
Senator Scott who has just sat down. One knows he has a quiet approach to whatever subject he speaks upon. However, his argument is not soundly based. The argument which his Party, the Australian Country Party, and the Opposition put forward is not soundly based. Over the past 2 years since the Australian Labor Party has come into Government we have witnessed a progression of decisions and of attitudes on the part of the Opposition which has frustrated legislation, not so much because the legislation is good or bad but because it has been initiated by the Australian Labor Party Government which remained in Opposition for some 23 years. Having come into Government it was determined to alter the pattern which had been established by the conservative parties over so many years. The Australian Labor Party in Government has endeavoured to establish Australia as a nation in a variety of fields. It has endeavoured in the field of foreign affairs to establish its name as an independent nation. In the area of trade it has endeavoured to do the same. And in the development of its resources, it has also endeavoured to do the same.
For some reason the Opposition parties have taken the view that this is wrong, that this is centralist, that this is socialist and that it takes away from the States their rights. But surely the Opposition must come to the point of decision. It must determine that the riches of this nation must be considered in a national way. In the field of exploitation of our mineral resources, of our riches, we must work as a nation. If we work not as 6 States but as a nation the decisions must be made from a central point. I would have thought that after 74 years of federalism, as we shall term it, at least we would have progressed to the point where we decided that responsibility for these matters must rest in national hands. For the life of me I cannot understand why so many people and why so many honourable senators want to go back 74 years to the time when the Constitution was established.
It has been said that the Constitution was drawn up by a group of frightened conservatives trying to impose upon the future the limitations of their own time. Surely this can be and has been discounted. But when one listens to the debates which have taken place in the Senate over the past two or three weeks one begins to believe that the conservatives of the past were afraid of the reforms which were likely to flow from federalism, from a central government, and that these reforms may be to the disadvantage of the conservative parties. The Opposition, the LiberalCountry Party coalition, has always to my mind been a strange coalition. It is really a coalition of conflicting interests. The Liberal Party represents the great financial interests of this country.
– Under the Labor Government the farmers are going broke.
– The trouble is that farmers, who are a section of the people you represent- not all the people you represent, Senator Sheil- are socialist in time of deprivation, in time of bad prices and in time of falling world prices. Then they are the greatest socialists of the lot. But when there is a profit to be made, that is different. When they are in trouble- Senator, you ought to know about this- they seek Government assistance, centralist assistance, socialist assistance. But once there is a profit to be made, once the prices are high, such people want to keep the Government out of that area. They say that it is none of the Government’s concern. So when the honourable senator talks about centralist assistance I ask him to remember that point. Apparently this strange coalition of the Liberal and Country Parties has established itself as the most conservative force which, in this place, is determined to oppose progress.
– What progress have we had in this field?
– It is progress towards nationhood.
– Progress- backwards.
– Backwards! At least we do not progress right back to 1901. Last night I listened to the honourable senator talking about colonies, dominions and appeals to the Privy Council. He was speaking not of 1974 but of 1 90 1 . We made no progress in 74 years.
– The honourable senator thought the turtles were following him on the beach.
-The conservatism of the Opposition has expressed itself in opposition to much legislation in this place. Looking at the Minerals (Submerged Lands) Bill and the Minerals (Submerged Lands) (Royalty) Bill which are before us tonight one feels as if one has been on a merry-go-round. The Bill was introduced in the other place. It came here. It went back to the other place. It has come here. It has gone back. It is back here again. It has been rejected on every occasion by the Opposition. It has been continually rejected not because the legislation ought to be rejected but because the Opposition is determined to frustrate this Government in establishing Australia as a nation in control of its resources and its destiny. This legislation originated in the Liberal Party. It is Gorton legislation. The honourable senator talks about turtles. If I might say so, the Opposition has turned turtle completely on this legislation and it is prepared to place the interests of this nation at the whim of 6 State Governments, whose responsibility in this area has been diminished by the progress and development of the nation itself.
The States have ceded powers to the central government. How much more is it necessary for the powers over resources, over minerals both on-shore and off-shore, to be vested in the central government? What is wrong with centralism when it is so expressed? What is wrong with protection that will prevent each State from competing against another State, especially when it makes an agreement with an outside nation? At the present time we have the spectacle of the Queensland Premier suggesting that he should take unilateral action in negotiations with Japan on the basis that if Japan does not buy beef from Queensland it does not get coal. That is the sort of decision making that the Opposition wants to be continued. That sort of decision making cannot be permitted. The sellers of coal in Queensland surely ought not to compete against the sellers of coal in New South Wales or any other place. The approach to nations which buy from us should be an approach from a single seller to a single buyer, but if we were to listen to the Opposition we would go back to the position where the Queensland Premier could say: ‘They must buy our beef or they will not get coal. They must not buy Tasmanian beef because that is some place far to the south, but they must buy Queensland beef. The Premier of Queensland is not only dishonest- shall I say stupid- in his approach, but he is also dishonest because he does not give the real reason for the refusal.
The DEPUTY PRESIDENT (Senator Webster)- Order! Senator, you will not reflect upon the Premier in that way.
– I reserve the right -
The DEPUTY PRESIDENT- I ask you to withdraw the remark that the Premier is dishonest.
– I am not a sensitive person. Could I make an explanation, Mr Deputy President?
The DEPUTY PRESIDENT- No. You made the remark and under the Standing Orders you are not permitted to make such a remark. I ask you to withdraw it.
-Yes, of course; I withdraw that remark. I hope the Premier of Queensland withdraws the numerous remarks he has had made about me in the past and for which I sought no withdrawal, either here or in any other place. He is free to make those remarks if he wishes. He can stand by his remarks and I will stand by mine. I will withdraw the word ‘stupid’; but he has been dishonest in his approach because he has not explained to the cattlemen of Queensland the true reason why Japan cannot purchase beef from Queensland or any other place, no matter how much it may want to purchase beef. It is because the price of wheat and grain has trebled throughout the world and the cattle raisers in Japan can no longer lot feed their cattle, so that the breeding herds -
– How does this relate to the Bill?
-This legislation is of a type that needs a unified centralist approach which can be taken only by the Australian Government. I am explaining how a State can take unilateral action to the disadvantage of the whole of Australia, and that has happened in Queensland. I have merely indicated that the Premier of Queensland has been dishonest, as has the Premier of Western Australia, in these matters of trade. What a scene of disarray, commercially and otherwise, there would be if each of the States were to have power over the exploitation of mineral resources. It is most necessary that the Australian Government should have control over the resources, mineral and otherwise, of this nation of ours. The off-shore legislation which Mr Gorton conceived would have given to us one great advantage from a conservation point of view. For the moment let us put aside the area of mineral exploitation, the search for oil, both off-shore and on-shore. I disagree with Senator Scott, who said that the reason why there has been a fall off in exploration is because of the centralist approach of this Government, because of legislation enacted in a variety of fields and the establishment of the portfolio of Minerals and Energy. The reason why there has not been substantial exploration for minerals and oil is beca use of the aftermath of the collapse of the stock exchange. The investor in Australia has lost confidence and will not invest in this high risk area that the honourable senator has been speaking about because the method by which the stock exchanges operate in Australia has led to a complete lack of trust by the Australian investor in mining exploration and oil exploration. There is no doubt that this did happen and it will be quite some time before that confidence is restored. In fact, we are going to witness again how this Senate can frustrate the Government’s desire to bring some regulation and honesty into stock market procedures, which the stock exchanges accept by and large. It is mainly for that reason and not so much for the reason that Senator Scott gave that there has not been exploration for both hard minerals and oil over the past year or two.
I come now to the need for central government control of what are now national responsibilities. The Great Barrier Reef is still at the mercy of the exploiter who seeks to make a quick fortune, the exploiter who hopes by some manipulation on the stock markets to move into an area, to search, perhaps to find a trace of oil, to make a quick kill on the stock exchange and to move out. This has been the history in the past; it will happen again in the future. This will develop in the future if we do not accept nationally some responsibility for our off-shore mineral exploitation. The Royal Commission on the Great Barrier Reef took almost 5 years to present its findings. Those of us who are concerned about the Great Barrier Reef cared little about the fact that it took 5 years to bring down its findings because while the Commission was in operation a 5-year moratorium was established over the Great Barrier Reef. But now the Commission, in a divided opinion, has brought down its findings and the Chairman of the Commission, an Australian, said that there should be no exploration on the Great Barrier Reef until such time as there had been much greater research. The other 2 Commissioners, who were not Australian- one being a Canadian and the other being from the United Kingdomhad no immediate national responsibility for the area. They came down with a proposition that, providing there are buffer zones, it is safe to drill on the Great Barrier Reef.
To my mind, unless the National Parliament passes this legislation, the National Parliament and the nation’s people will not have control over what happens in that vast area of the Great Barrier Reef. While there is a divided responsibility between this Parliament and the Parliament of Queensland the Great Barrier Reef stands under threat and will continue to stand under threat. At the present time it is quite possible for the Queensland Government, with its vast National Party-Liberal Party majority, to grant a permit for drilling on the Great Barrier Reef. Here we have a State Government with a Premier who has an interest in the Great Barrier Reef, and he has not divested himself of that interest. He has an interest in a company which has a lease on the Great Barrier Reef and is determined to drill on the Great Barrier Reef. Here we have a National Parliament and members on both sides cj” this National Parliament have declared themselves against drilling on the Great Barrier Reef. Where should the responsibility rest? It is obvious that the Queensland State Parliament does not accept its responsibility to all of the people. The Great Barrier Reef does not belong only to the people of Queensland but to the people in all parts of Australia. Further, it belongs to the nations to the north of us even including Japan, South East Asia and America. As well as being an international responsibility, it is a national and a State responsibility. Yet, by continually refusing to pass this legislation, we leave the Great Barrier Reef and other such areas at the mercy of some parochial State Parliament.
– Do you not represent the people of Queensland?
– I represent first the nation of Australia.
– No, you do not.
– Yes, he does.
-Whom do you represent?
– The people of Queensland.
-Are the Queenslanders not Australians? Does not the greater contain the lesser? What sort of an attitude is that? How can it be that Senator Sheil as a Queenslander should look at Queensland first and then the rest? Perhaps he has not forgotten his football days. Perhaps this is just a football game. It seems to me that the sooner we accept our nationhood and that we are Australians and the sooner we develop a nationalism that is Australian and do not act as Queenslanders, New South Welshmen, Victorians, South Australians, Western Australians, or even Tasmanians the better it will be for Australia. To think otherwise, in my opinion, is a retrogressive step. The vote of this Parliament as expressed in the Senate tonight will be a retrogressive step. I know for a fact, as I look at Senator Wright, that in spite of his use of the words ‘dominion’, ‘colony’, ‘Privy Council’ and all the other words to which he gave expression, once he moves away from the shores of Australia he becomes an Australian and not a Tasmanian.
-That is the truth of it, Senator. It is seen in your attitude since you returned from the United Nations. You did not represent Tasmania. You certainly did not represent Queensland. You represented Australia.
The rejection of this legislation, which the Opposition is about to do, is, shall I say, a rejection of the right of Australia to make decisions in its own right as a nation and not as 6 States thrown together higgledy-piggledy. The strength of Australia, if we work it as the Opposition works it, may be expressed this way: Australia will be as strong as the weakest State. That happens whether what is involved is prices, stock exchanges, mineral exploitation, or the sale of coal or beef. The strength of Australia under the system proposed by the Opposition will depend on the weakest State. Australia will be as strong only as the weakest State because the exploiters and the racketeers, those who want to take a quick advantage, will go to the weakest State. If one wants to register a firm or list a firm with the stock exchange, why should one go to New South Wales which has a reasonably effective Corporate Affairs Commission? One rather would go to Western Australia or to Queensland where the corporate affairs body is so understaffed that in some cases it does not even know when annual reports from companies have been submitted.
That is the position in which we will continue to find ourselves if we depend on the States to make vital decisions in the national interest or if we are to depend on a group of States, Labor and anti-Labor, with their squabbles and their countersquabbles. If we are to depend on a loose federation of that type, we shall continue to be in trouble and we will be at a disadvantage. The Opposition will reject this legislation. It has rejected other legislation that has come before this House. It will reject the next piece of legislation to be considered by the Senate. When are Opposition senators going to accept their responsibility -
– At a Joint Sitting.
– When will they do that as Australians?
– At a Joint Sitting.
-At a Joint Sitting? When will a Joint Sitting be? Are you suggesting, Senator Hall, that this Senate will again refuse supply?
– They are making noises.
-Is it their intention? Surely, Senator, you will not support the Opposition. Perhaps the new Senate incumbent from New South Wales will see what is in the best interests of Australia and not support such action. There is now a hint that the Opposition may come to the point of a double dissolution.
– That is why you are putting the Bill forward.
-These Bills that are coming forward are coming forward for the third time. Are you saying, Senator Missen, by continually refusing to pass legislation, that you want a double dissolution?
– I am saying that you are putting up this Bill just to give yourself some weapons.
-Are you saying that there is no advantage in this Bill? Are you prepared to get up, Senator, and declare that this Bill is fundamentally wrong and not in the best interests of Australia?
– No. I made the point.
– You made the point all right!
– But he is going to be destructive.
-The frustrations which honourable senators on the Government side suffer perhaps are expressed from time to time in rather angry outbursts. But let me impress upon those who wish to record what has happened here tonight that what the Opposition is doing is not judging the Bill upon its value or its contents but merely judging it as a means by which it can frustrate the Government and force it if possible to an election. This confrontation is not in the best interests of Australia. If the Opposition is so confident that it can win an election- and I do not think Opposition members are; I have a feeling that things have changed somewhat. I believe that we have moved away from an election this year. This seems to be the feeling. I think that the will of the Liberal Party and its Country Party associates is diminished somewhat. But surely in the political arena or in the political area, another year is not too long to wait? Why is it that the Opposition is not prepared until this Government has run its full term? Why does it seek a short term advantage? Why does the Opposition seek to discredit and to frustrate the Government and to force it to an election?
– Why are you putting the Bill up again?
– We are doing so because we believe that the Bill is a most necessary Bill. I had hoped that, surely, I had made several points. One concerned the Barrier Reef. Another concerned the future of our mineral resources and the consolidation of our mineral position. I would have thought that those points were sufficient to justify the passage of this legislation. After all, it was the Opposition’s legislation in the first place. What the Opposition has done has been to disown its former Prime Minister by negating this legislation. The Opposition has not negated the legislation because it believes the legislation is bad; it has negated it merely to frustrate the Government.
– I am pleased that I am in the chamber actually to see that the people who are making these statements are on the Opposition side because, if the statements that we have heard had been heard by one over the radio and one had not recognised the voices as coming from certain individuals, one would imagine that it was members of the Labor Party making a number of the statements which have come from the Opposition side. In leading in this debate, Senator Durack said: ‘We would have done things differently. The Liberal and Country Parties would have done things differently’. One is justified therefore in asking the question: Who originated this legislation? Who originated the question that we are now discussing? Of course it was a Prime Minister of another time, Mr John Gorton. He first brought this subject into being. It was discussed in State Cabinet rooms around Australia in relation to the question of the supremacy of the State or the Commonwealth in off-shore areas.
– When did he bring this Bill in?
– I am not talking about the particular Bill. We are talking about the subject matter which first brought up this question. It was brought up in the time of the Liberal-Country Party Government. That is when this question of who had supremacy in these areas began, and that is the question which we are now discussing.
The second thing that I heard this evening was Senator Scott warning the people that there might be another joint sitting. Who in this Parliament will cause a joint sitting? Will it be the Government? Will the Government suddenly say to the Opposition: ‘We have had so much frustration- as we have had with this Bill- that we will have another double dissolution’? We know what will be the only answer to the question of who will cause a double dissolution this year. If there is to be one, it will be because the Opposition side of the chamber has denied Supply once again, as it did last year. That is the only reason that there will be a double dissolution in 1975. So the decision as to whether or not there will be a double dissolution will rest with Senator Scott who warned the rest of Australia that in some strange fashion there might be a joint sitting. If he does not want one he can stop one. He can say tonight if he wants to that there will not be one. He has only to rise to his feet and say: ‘I will not support any denial of Supply’. If he is so concerned then he still has time tonight during the broadcast of proceedings which he used to warn Australia to get up and say that he will use his influence to prevent what he fears so much.
I heard Senator Missen interjecting that the Government is getting ready for a double dissolution. It was said in a complaining sort of tone that the Government was bringing this Bill in as the basis for a double dissolution. We ask again: Who will cause a double dissolution? Who can prevent it? Senator Missen can rise in his place tonight and say that there will not be a double dissolution. Again, the decision rests with him.
– When did the Opposition deny Supply?
-If Senator Webster is going to bring up the argument that the Opposition did not deny Supply last year and did not cause an election, it is no wonder his side of the House is turning this debate completely upside down. Senator Greenwood can laugh at the fun of it all. Perhaps he too can get up and say that his Party did not deny Supply. Who in Australia will believe that? Who will believe that technicality which he raises? It is no wonder that the backers of the Liberal and Country Parties in Australia are so dismayed at their representatives in this House. I can say from experience that this year they are extremely dismayed at the tactics that the Opposition has used to frustrate government in Australia because legislation, although it may be good, happens to be brought in by a Labor Government and therefore cannot be supported. This Bill is one such piece of legislation.
Opposition senators have been saying tonight that it is a tragedy for Australia that mineral exploration has not been proceeding at a faster pace. But what will the denial of this legislation do should the High Court of Australia find that the Commonwealth has supremacy in the areas we are discussing? It will mean that the Commonwealth will then not be able to proceed until the Government comes back and gets this legislation through the Houses of Parliament because it will have been denied the essential mechanics for the development of minerals off-shore. It will not be able to proceed with the allocation of leases and the development and exploitation of off-shore mineral resources. We heard honourable senators on the Opposition side of this chamber lament the lack of co-operative federalism. I must say that Senator Georges raised that subject very effectively when he referred to the Queensland Premier refusing to co-operate in many details with the Commonwealth, one of which I suppose will be the Lands Commission. The Queensland Premier will be quite happy to have land in his capital city at a higher price than no doubt it will be in other capital cities because he will not accept Government assistance to facilitate the putting on the market of great areas of land. Also, as Senator Georges has said, the Premier when overseas said to Japan: ‘You cannot have coal unless you buy our beef. This is the man apparently for whom the Opposition would deny this legislation. It is for that sort of man that the Opposition tonight would refuse to pass the essential part of the Seas and Submerged Lands Bill which it knocked down when it went before this House in 1973, when Senator Greenwood said that, firstly -
– What do the people of Queensland think of the man you are speaking so disparagingly about?
– I did not quite catch that interjection.
– The honourable senator should disregard interjections and I ask all other honourable senators to remain silent.
-Senator Greenwood said in 1973 that ‘there are therefore 2 fundamentals which have to be linked with any resolution of this problem: firstly, to know what the limits of authority are’- that is tremendously important for 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’- I suggest he would have been referring there to the matter which is now before the High Court- ‘we must have it worked out cooperatively with whatever regime we have in the off-shore waters’. In a practical sense, forgetting the States’ rights issue as an overriding one here- I suggest that the development of Australia’s off-shore minerals is of greater importance than the issue of the States’ rights at this time after so many years of dissension about that matter have gone by- the subject really to be discussed tonight is whether the Commonwealth is to have the mechanics of making the Seas and Submerged Lands Bill operate if the High Court should find in its favour. That, I believe, is the discussion we have before us. What the Opposition is saying is: ‘No. The Commonwealth shall not have the mechanics to make that legislation operative if it is given the authority as a result of the present challenge’. Australia will be the loser, as Australia has been the loser in so many things that the Opposition has defeated simply because legislation is brought in by a Labor Government.
This I deplore. People should read very carefully the speeches which have been made here tonight by the Opposition to see really who is making them and to see how topsy-turvy have been the arguments made by Liberal and Country Party senators who lament the development of mineral search and exploitation in Australia and yet in one blow tonight will strike at the very development of minerals and the exploitation of minerals in Australia. This Bill is not worth a lot of debate because it is a second run, but for the Opposition to charge the Government that there is some danger in a joint sitting is the height of hypocrisy. I, too, would warn about the dangers of a joint sitting. The Liberal and Country Parties in Australia and their backers are looking right down the barrel of a joint sitting. I suppose that 2 months ago they and their supporters would have said that they could not lose an election caused by a double dissolution. They cannot say that today because of their actions and because of Mr Lewis in New South Wales, a friend of Senator Young.
– You are barracking for the socialists.
– We will have Senator Young on in South Australia about who is helping the socialists because, now that Senator Young has mentioned it, we can ask Australia: Why is it that Australia is now presented with Medibank? Why is it that Australia is now presented with a Petroleum and Minerals Authority? The answer simply is that last year the Liberal and Country Party forced the joint dissolution of the 2 Houses. They lost the election and, incidentally, would not accept the verdict. As a result of them forcing an election when they ought not to have done so they were taken to a Joint Sitting by the Labor Party and all those things which their supporters detested so much came into being. The Liberal and Country Parties, with Senator Young bearing full responsibility for it, gave the power to the socialists he now interjects about. His leader is now stomping around Australian asking his supporters publicly to support another double dissolution. Senator Jessop in the Senate the other day asked me to join his Party in forcing this Government to the people again. It is on again; Mr Snedden says it publicly and Senator Jessop asks for support in the Senate. They are doing this without any certainty of winning an election. I say as a Liberal that I am dismayed that these people, with their supporters and their inherent political beliefs, will take their risks and very much the risks to their future in Australia by threatening to send the Government to the people again without knowing they will win. That is the tactics of the matter without the principle. We will see whether Opposition members will follow their Leader who has been damned by nearly every newspaper leader writer in Australia. Even today, their Leader lost the ‘Sydney Morning Herald ‘. This is the style of politics that we have surrounding the legislation before us and the Sydney Morning Herald’ brought that out in part of its leader article this morning. The article referred to the disaster for Mr Snedden last week at the hands of the Prime Minister being bad enough. It said that this week he has again started on the wrong foot by making a statement of truly astonishing political ineptitude to the effect that a Liberal-Country Party Government would dismantle all except a few of the present Labor Government’s policies. The article goes on to say:
It is uncomfortably reminiscent of the Luddites of the early nineteenth century, who disliked the Industrial Revolution so much that they set about destroying as much of the hated new machinery as they could. In the late twentieth century, voters are surely entitled to look for a rather more subtle approach.
It goes on to say that that is not intelligent or sensible and that generalised, ^discriminating com.minations command little respect. That is the Leader that some of these honourable senators are attempting to follow apparently into the jaws of another double dissolution and to the extent of looking down the barrel of a second joint sitting in the history of the Australian Parliament. They ask for support to knock out legislation that Australia vitally needs to settle a question that has been far too long bedevilling the State and Federal issue. All I can say is that I am extremely sorry that the Opposition has turned the argument upside down and charged the Government with something of which they themselves are guilty.
– We have just listened to a highly emotional speech from Senator Hall who has accused the Opposition of turning things upside down. Unfortunately, for the last 10 minutes there has been a tirade of abuse and personal vendettas against individual senators on this side of the chamber. In my short time in the Senate this was a rarity until recent times. I regret very much that debate in the Senate has been lowered to that level. I say that with all sincerity because the Senate has always prided itself on the way in which debates have taken place. There have been cross-fires from either side of the chamber. But, as I say, these have been rarities and in the main have dealt with the subject under discussion. I wish to return to the Bill before the Chair tonight.
This is not the first time that the Minerals (Submerged Lands) Bill has been before the Senate. In fact, it is the fourth time it has been discussed in this chamber. On the first 2 occasions that it was presented to the Senate it was Part III of another Bill, the seas and submerged lands legislation. On the second occasion on which that Bill, including this Part III, came before the Senate we in the Opposition amended the Bill in the Committee stage to delete that Part III from the Bill. We objected to the mining code, as that Part III of the Bill was called. We did not agree with what was being attempted by the Government in that respect. We did support the Government in its seas and submerged lands legislation. I think that all honourable senators are aware of the fact that we supported it. The issue on the seas and submerged lands legislation was primarily a matter of where sovereignty lay on the off-shore areas of Australia, that is, whether it lay totally with the Federal Government from the low water mark right out to the edge of the continental shelf, whether the States had sovereignty from the low water mark or the high water mark to the 3-mile limit and the Commonwealth took over, or just where the sovereignty lay in toto.
This has been a contentious matter which remained unresolved for quite some time. There was no way in which it could be resolved other than by a decision of the High Court. There was no way that the High Court could deal with this until such time as there was a genuine challenge. Hence it was necessary to reach a situation in which the Federal Government would lay claim to all of the off-shore areas of Australia and give the States the opportunity to litigate against the Federal Government through the High Court and finally have the situation resolved. This is the situation we have reached at the present timethat is, the matter is now before the High Court.
I wish to refer to a report of a Senate committee which followed previous legislation that dealt with the petroleum industry in the off-shore areas of Australia. I refer to the report of the Senate Select Committee on Off-Shore Petroleum Resources. One of the conclusions of the Committee dealt with this unresolved issue of where sovereignty lay in the coastal areas of Australia. Incidentally, this Committee engaged in a great deal of inquiry and met for some 3Vi years. I quote from one of the conclusions in the Committee report:
That, notwithstanding the advantages to the national interest 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.
We have been referring to the domestic problem of the off-shore areas. One has to go much further than that. We referred to the international aspect of this which again the Committee reported on. Senator Webster on a previous occasion referred the Senate to this aspect in debate. I refer to some of these matters and quote again from the report:
Accepting that the Commonwealth Government has the responsibility in the international community for actions taken and things done in the off-shore waters of Australia, the unresolved point is whether in the Australian community the Commonwealth or the States have the responsibility. Having regard to what Justices of the High Court have saidand all witnesses who gave evidence on this aspect generally concurred- it would appear that the Commonwealth has the constitutional power to legislate under its external affairs power to give effect to international obligations. But it is generally regarded as an open question whether the Commonwealth may successfully claim that ‘rights’ or ‘powers’- as distinct from duties or obligations- accruing to Australia under international conventions will entitle it to legislate to give effect to them. If they do so, it would mean that in significant and, possibly, expanding areas the Commonwealth heads of power would become more extensive than the constitutional provisions expressly contemplate- and, consequentially, reduce the exclusive area of State authority.
Honourable senators can see from that report of the Senate Committee that it was necessary also on that basis that the situation should no longer remain unresolved. This is one of the main reasons why we on this side support the Government in its legislation regarding the seas and submerged land.
The mining code, as it was then known and which is now called the Minerals (Submerged Lands) Bill, is an entirely different proposition. It has been suggested by Government supporters that what this Federal Government wishes to do is to get a uniform code for mining in the offshore areas of Australia. I accept that that is one of the things that this Government wishes to do. But it wishes to go much further than that. It is only a small part of what this Government intends to do. The intention is clearly shown by a statement by the Minister for Foreign Affairs (Senator Willesee) in the second reading speech when the Minerals (Submerged Lands) Bill first came into the Senate. He stated:
This Bill provides a mining code being the legal framework for the exploration and exploitation of our off-shore minerals resources in exercise of the Australian Government’s sovereignty, proclaimed through the Seas and Submerged Lands Act 1973.
He continued further and at the end of his second reading speech the Minister stated: . . the passage of this Bill will be a further significant state in the exercise of the Australian Government s sovereignty in respect ofthe off-shore mining industry.
That clearly shows the intentions of this Government which are to take a total claim and right to ali the seabed areas of Australia, with no respect whatsoever for any of the States, and to continue on its way and to do exactly as it wishes to do. I can appreciate that some honourable senators on the other side might say that it is not clearly what the Government intends to do; it is not spelt out that way. It is. We have had examples on many occasions of the intention of this Government. We have seen it clearly expressed in the lack of co-operation on the part of this Federal Government with its centralist approaches from Canberra in the way it abrogates any co-operation with, or respect whatsoever for, the State parliaments of Australia.
With regard to the challenge that is being made in the High Court at present, the Premier of South Australia, Mr Dunstan, a Labor Premier, revealed in the Press on 5 July 1974 that South Australia also would take up the challenge as to where authority lay in the off-shore areas of Australia. As reported in the South Australian Advertiser’, Mr Dunstan suggested to the Commonwealth Government that it should invite the States to join in a test case in the High Court which could be done co-operatively- I emphasise the words ‘could be done cooperatively’but the Commonwealth Government had refused the suggestion. That statement was made by a Labor Premier. The Commonwealth Government was not prepared even to cooperate with the States to obtain clarification of where authority lay in the off-shore areas. This Government is not prepared to co-operate with the States in any way at all with regard to minerals exploration or exploitation on-shore or offshore. It is not prepared to co-operate with the States in any way with regard to the exploration for or exploitation of petroleum.
During the past month we have seen the Minister for Minerals and Energy (Mr Connor) do all he can to frustrate and, if possible, to erode the States’ authority and, wherever possible, to dictate terms to the States. This Bill will be no exception because the intention of the Federal Government is clear. The intention is not to cooperate with the States in any way. If this legislation were to become law we would finish up with a duplication of mining administrations. That situation should be avoided; and State Mines Department who do an excellent job, used, as in the off-shore oil exploration. I wish to quote again from the report of the Senate Select Committee on Off-Shore Petroleum Resources. The Committee dealt with this aspect of duplication. In another of the Committee’s conclusions the report states:
The submissions on behalf ofthe States and on behalf of the Commonwealth Department of National Development have stressed the desirability of utilising the services, personnel and expertise of the existing States Mines Departments. Undoubtedly the minimising of costs and avoidance of duplication are factors of weight in favour of the system which has been devised.
The system that had been devised was a system whereby there was co-operative federalism and the State Mines Departments were being used, but it was a joint exercise between the States and the Commonwealth Government. The report of the Committee continues:
It also permits a degree of integration of the on-shore mining operations with off-shore operations.
This would apply to mining as well as to petroleum. The report continues:
That is a quote from the report of the Senate Select Committee that went into these matters in depth. The Committee was composed of senators from the various parties in the Senate. So there is no political bias whatsoever in those conclusions; but the conclusions were reached after a great depth of inquiry by the Committee.
I wish to return to the attitude of this Government to the States. We can look at what has happened on the north-west shelf of Western Australia where the interference of the Federal Minister, Mr Connor, has done so much to frustrate development and exploitation. A great volume of gas has already been discovered. There may be liquid hydrocarbons there- nobody knows- but we do know that there has been great discouragement of exploration and a frustration of the exploitation of what has already been found because of the attitude of the Minister for Minerals and Energy who is backed to the hilt by the present Government. In my State of South Australia for 2 years there have been discussions about the establishment of a huge petrochemical industry at Redcliff. We have seen the frustrations of a State Labor Parliament led by Premier Dunstan reach a stage that the Parliament of South Australia agreed unanimously to criticise the Federal Minister for Minerals and Energy for his interference in the development and construction of the Redcliff project, which today has been put into mothballs and which, if it had not been for the interference, would have now been a going concern. I have cited those 2 examples but we can go even more into this interference and how far this Government will go to obtain maximum powers by this legislation.
I refer, as Senator Durack did this afternoon, to what is happening with regard to the renewal of licences for the exploration for oil and gas in the off-shore areas. Again we are finding frustration. We are finding so much uncertainty on the part of exploration companies that today they are turning their back on Australia. The number of drilling rigs being used today is minimal compared with what it was 2 years ago. Senator Georges made the point that this is a result of the great mining boom.
– And the collapse afterwards. I will not accept that. If Senator Georges cares to look at the figures that show the number of wells being drilled and the number of wells that are projected, he will find that there has been a great down turn in exploration and, as a result, exploitation in this country because the exploration companies have said: ‘You might have potential, but there is potential in other parts of the world and at least there is encouragement in other parts of the world and, more importantly, there is a little bit of credit and respectability and we will not be taken over by the Government’. So many of these companies have gone to our near neighbours. The Broken Hill Pty Co. Ltd was involved in the Bass Strait find, which the Labor Party would like to take over, and no doubt if it gets the chance, it will. No doubt if the Government got the chance it would do so. Broken Hill Proprietary Co. Ltd has moved into other areas and expanded as an international company.
– Where did it go?
– The honourable senator knows where the company has gone as well as I do. It has gone to areas of South East Asia. It has found oil there, and the honourable senator knows it. I will not be drawn away from the subject by Senator Georges.
The ACTING DEPUTY PRESIDENT (Senator Bonner)- Order! Senator Young will direct his remarks to the Chair.
– Other companies have done exactly the same thing, all because of the attitudes and policies of this Government.
I have referred to the fact that we will not accept this Government’s statement that it is prepared in any way to work with the States. The original petroleum legislation for the off-shore areas was introduced after many years of discussion between the Commonwealth Government and the States. Finally what is termed mirror legislation was drawn up. It was identical legislation which had to be passed in the State Parliament as well as in the Federal Parliament. Prior to that an agreement was made. I wish to quote from the agreement because it shows that the Labor Government completely abrogated it. I refer to the preamble to the agreement. If any honourable senator in this chamber wishes to check, he may. It states:
Whereas the Governments of the Commonwealth and the States have accordingly agreed to submit to their respective parliaments legislation relating both to the Continental Shelf and to the sea-bed and sub-soil beneath territorial waters and have also signed to co-operate in the administration of the legislation -
I shall now refer to clause 6 of the agreement.
– When was the agreement made?
– The agreement was made in 1968. I cannot give the actual date. It was made after many years of discussion and negotiation between the State parliaments and the Federal government of that time.
– Who was Premier of South Australia then?
-I will deal with that later. Clause 6 of the agreement states:
Except in accordance with an agreement between the Commonwealth Government and the State governments, a government will not submit to its Parliament a Bill for an Act that would either (a) amend or repeal an Act that is contemplated by the preceding provisions of this part or in any material respect affect the scheme of the legislation that is contemplated by this agreement.
The first thing we saw when the Bill dealing with the Pipeline Authority was introduced was that this Government completely abrogated that agreement. Clause 39 of the Pipeline Authority Bill completely overrode State authority. The Minister handling the legislation had to admit that to his knowledge there had been no discussion whatsoever between the Federal Government and the State parliaments. Yet this Labor Government was prepared to ride roughshod over the States and to break an agreement with the States on a very important issue.
I refer again to what the Government will do if this legislation is passed. Under the provisions of the Bill the Minister has extensive powers whereby he can take unto himself directions in so many ways. If the Bill reaches the Committee stage- I hope it will not- no doubt a lot of this could be exposed. We have reached the situation where the Opposition must, as representatives of the States, protect the interests of our States and do all we possibly can to make sure that exploration and exploitation will continue in this country on sensible lines with co-operation between the Federal Government and the States and that the States’ shares or responsibilities will not be eroded. I, as a South Australian senator, would be letting down my State if I were to support such legislation. I have a responsibility to my State, as well as to this nation, to make sure that the most effective ways of carrying out exploration and exploitation of minerals, as well as hydrocarbons, both dry and liquid, are continued in this country.
It was surprised to hear the remarks tonight of Senator Hall who, as I said earlier, spent so much time saying that the Opposition has done so many bad things and again is frustrating legislation. 1 look upon our attitude to this legislation not as something which is frustrating the Government but as something by which we are protecting the rights of so much of this country. 1 was surprised to see him adopting the attitude he has tonight. I recall the time when the right honourable John Gorton was Prime Minister of this country. I regret that Senator Hall is probably busy in his office and is not able to be present at the moment. When Senator Hall was Premier of South Australia in 1970 there was great concern when Mr John Gorton, as Prime Minister, was proposing to introduce legislation in regard to seas and submerged lands whereby the Commonwealth was going to lay claim to the off-shore areas of this country. Many of us were prepared to support him in that in order to get the situation resolved, as I said earlier in my speech tonight, and to know where State authority lay and where Commonwealth Government authority lay. Mr Hall, who was the Premier of South Australia at the stage, did not quite see it this way. I intend to quote from the Adelaide ‘Advertiser’ of Saturday 28 March 1970. The front page headline stated: ‘South
Australia Will Fight On Sea Bed Mining’. The article stated:
The State Government -
This was the Hall Government- will fight the Government over who should control all underwater mineral rights outside the low water mark. The Premier, Mr Hall, made this clear on Thursday after the Minister of Mines, Mr de Garis, had telephoned him from Melbourne to say that the talks between State Ministers of Mines and the Minister for National Development, Mr Swartz, had failed to reach agreement. Mr de Garis had stated that nothing had been achieved at the meeting which could benefit the State, Mr Hall said. Mr Hall said South Australia will not cooperate with the Commonwealth on this matter.
Mr Hall said South Australia will not co-operate with the Commonwealth on this matter as it believes there should be legislation identical with the existing off-shore oil legislation.
This is so different from the mining code that is being supported tonight. The article continues:
The off-shore oil legislation provides for the oil on the Continental Shelf outside State waters such as gulfs and bays to be operated under the joint and parallel arrangement. We will fight the Commonwealth decision all the way, Mr Hall said. The Government was concerned that the Commonwealth might eventually intrude into what was termed South Australia’s internal waters which include Spencer and St Vincents Gulf, he said.
I ask honourable senators to wait for this last line. It reads:
Mr Hall said he hoped the State interest would be upheld in the Senate. The Bill might be defeated there.
That statement is by the then Premier of South Australia. It was reported in the ‘Advertiser’ of Saturday, 28 March 1970. The article dealt with proposed legislation about which he was most concerned. We find tonight that for some strange reason Senator Hall is accusing us of frustrating legislation. If I were to take that statement in the newspaper as my guide I would have expected him to be on my side, but he has a democratic right to change his mind. As far as I am concerned the people of South Australia sent me to the Senate to protect their rights. I still stand by the statement made by the last Liberal Premier we had in South Australia when he said he hoped the Senate would stand by the States. That is exactly what I am doing- standing by what the previous Liberal Premier in South Australia said we should do. That is my stand, and I will oppose this legislation.
-We have listened to contributions by members of the Opposition. To my knowledge this is the fourth occasion since 1973 that legislation such as we are discussing tonight has come before the Parliament. One needs to go back even beyond 1973. If my memory serves me correctly, a former Prime Minister of Australia, a man I have a great respect for still, namely Mr John Grey Gorton, attempted to do the same thing as we are trying to do now for the fourth time. It is interesting to note that Mr John Grey Gorton was deposed because he obviously touched a very sensitive nerve of the establishment and vested interests which we again see being defended tonight by pure subterfuge and, with great respect- I cannot use the language I would like to use in this chamber- with ultrabalderdash. I think that is a nice word. I am trying to be polite. I happened to find some information today which goes back to 1933. What honourable senators opposite are doing tonight they have done before, even when their own Prime Minister was promoting such legislation when honourable senators opposite were in Government. Mr John Grey Gorton suggested that there ought to be legislation that should be tested in the interests of Australia’s sovereignty.
– We have done that.
– You have not done that. I will refer you to what was said by another former Prime Minister of Australia. In fact he was not only a former Prime Minister of Australia, but he was also- I think we should give him credit- the architect of the movement which members of the Liberal Party now represent. I refer to Robert Gordon Menzies and what he said back in 1 933. Senator Baume may shake his head. He says that it has no relationship to what we are talking about tonight, but it has because honourable senators opposite are doing the same thing now. Senator Wright may laugh. He does not like what is going to be said. What I am saying is that honourable senators opposite are trying to defend again what was said by a former Prime Minister of Australia and former AttorneyGeneral of the Victorian Government. I think he was Leader of the United Australia Party in that day and age, but of course it is difficult to keep up with honourable senators opposite because they have changed their name like the thief in the night to disguise their identity. They have changed it a few times over the years.
In 1933, as reported in the Melbourne ‘Argus’ on Tuesday, 25 April 1933, the then AttorneyGeneral of the Victorian Parliament was defending something to his utmost. I discount anything that may be said by Senator Jessop, who is trying to interject, because there is nothing between his ears except a lot of hair and hot air. The then Attorney-General of the Victorian Parliament was defending the great interests of the Shell Oil Company of Australia against the Australian people. Honourable senators opposite are doing it again. 1 shall not talk about the details of the
Bill because that has nothing to do with it. The Government obtained a mandate on 2 occasions within 14 months to do what we are trying to do tonight, and John Gorton tried to do it before we came to power.
– When are you going to tell us what Sir Robert Menzies said in 1 933?
-I will tell you. I am pleased you asked me.
– He was not Sir Robert then.
– He was just ordinary, everyday Robert Gordon Menzies. I do not propose to waste my time or lose my time by responding to the interjections. I am prepared to table extracts from the ‘Argus’ on various dates in 1933 which point up very dramatically that Sir Robert Gordon Menzies, then Mr Robert Gordon Menzies, Q.C., was prepared to do the same thing as honourable senators opposite are now doing and as their Deputy Leader tried to do in 1974 during the course of the election campaign following the double dissolution when he was advocating protection of multi-national foreign interests, which was not in the best interests of Australian people. Senator Wright may laugh.
– He is sniggering.
– He may snigger or laugh, but let me make the position perfectly clear. This afternoon Senator Carrick said that he could not believe it was possible for the Australian Government, on behalf of the Australian people, to raise $300m a year to engage in exploration and exploitation of our mineral resources, because after all that is risk capital. I would ask Senator Carrick to listen to me. If foreign interests, which are the only source from which we can derive this sort of finance, are prepared to invest $300m so-called risk capital a year, they would not do this unless they were guaranteed very handsome returns. Why should the Australian people not enjoy the benefits of that socalled investment of risk capital backed by the Australian Government in their own interests?
– When are they going to do that?
– Hear me out. You are the sort of person, representing the so-called Opposition, who has deliberately blocked the opportunity of the Australian people to enjoy that investment- risk capital, as you refer to it I do not wish to be unkind or to misrepresent the situation but honourable senators opposite have either been got at- I am trying to find the right word to be soft and kind about it- or alternatively represent somebody who has convinced them that it would be unwise to support a Bill relating to the disclosure of political funds that they rejected not for the first time but, to my knowledge, at least the second time.
– I want to know when your Government is going to find the necessary finance.
– You have never given the Government the opportunity. I will tell you why.
– You had a Budget this year. You found $50m
-As a matter of fact, the Government presently in power was elected twice within 14 months with a mandate that Senator Durack does not understand or accept. We made a pledge to the people of Australia. Senator Durack had better watch me and not the senator behind him who is trying to prompt him. This Government was elected twice within 14 months on a pledge to acquire for the Australian people the benefits that could accrue from exploration and exploitation ofthe tremendous wealth that our mineral resources could provide for the Australian community. All that the Opposition has put up on this occasion and on at least 3 other occasion, even against its own Prime Minister, John Grey Gorton- it never allowed his legislation to come into the Senate- is just downright subterfuge. Do honourable senators opposite mean to say to me that they would prefer that foreign interests, which represent $300m, as was. said this afternoon by Senator Durack- correct me if I am wrong -
– I did not say anything about foreign investment.
- Senator Durack said there was a need for $300m investment to support and underwrite exploration and exploitation of our mineral resources, excluding petroleum. Does he think that the Australian people and the Australian Government representing the Australian people for the first time since 1949 could not find that sort of finance so that Australians may enjoy the benefits whose expatriation out of this country he has been prepared to support? Does he say that that is right?
– Why did you not find the money in the Budget?
– You are not prepared even to agree to the Minerals (Submerged Lands) Bill and/or its supplementary Bill, which is the Minerals (Submerged Lands) (Royalty) Bill. Mr Acting Deputy President, I am trying to find the right words so that what I say will be within the confines of permissible parliamentary expressions. The Opposition is not fair dinkum. I invite Senator Durack to cast his mind back to the period ofthe last World War, 1939 to 1945, when his Party was in Government. I refer to his predecessors, the United Australia Party, but call it what you will. His Party had to change its name like a thief in the night. Its members did not want the people to know that they were still the same. The Australian Labor Party controlled the destinies of this nation during that war without raising one cent outside Australia. It was acknowledged even by the United States of America that Australia ‘s contribution to the war effort was not a 25 per cent contribution but a 100 per cent contribution. If we can do that in war why can we not do it in peace in the interests of the Australian people?
– Well, I do not know.
– I say to you, Senator, that you are a political fraud. If I have to withdraw that term I will but I have said it. Let me say one other thing.
– You might tell me where you are going to get the money.
– Your Party has changed its name but not its colours. Sir Robert Gordon Menzies, as he is now, the Warden of the Cinque Ports, God bless him, was evidently the recipient of a great contribution for services done by Sir Sidney Kidman, the great cattle king, and do not question me.
– And William Angliss.
-And William Angliss. He received personal gifts of £10,000, £20,000 and £40,000, not dollars. I understand that Sir Robert Gordon Menzies was a member of a Victorian rifle regiment. It is said of him that a great military career was cut short by the outbreak of war in 1914.
– You were going crook today about a newspaper damaging your character. You can give it but you cannot take it.
-Do not talk rot. The honourable senator is trying to defend the indefensible. Senator Durack, the honourable senator from Western Australia, was not raising a question of technical detail tonight but a question of philosophy. Honourable senators opposite should hear this loud and clear.
– Give us your philosophy.
– I will give it to the honourable senator; do not worry about it.
– You would not know it.
- Senator, do not make your ignorance so public. I want to say something loud and clear to the honourable senator from Western Australia and all those senators on the Opposition side, including my friend Senator Wright. I probably whetted Senator Wright’s appetite today when I read out what was said in the ‘Sun’ about his eloquence. I was a bit concerned about doing that because I knew it would go to his head but I have a certain affection for him.
The ACTING DEPUTY PRESIDENT (Senator Bonner)- Order! Senator Brown, would you please address your remarks to the Chair.
– My apologies, Mr Acting Deputy President. I respect you as an Acting Deputy President because I have been in that position. I want to link what I am about to say with what I said earlier. I want to point up the really sharp difference between the Opposition’s philosophy and our philosophy on the Government side.
– It certainly does.
-My word it does.
– And we are proud of it.
-A11 right, the honourable senator is proud of it. I am pleased that he interjected and I will tell the Senate why. At the Blacktown Civic Centre in November 1 972, my leader, Mr Whitlam, delivered a policy speech in which he said, among other things, that we would do the very things that we are attempting to do now. The honourable senator may well have been one of those who was responsible for the downfall of one of the former Prime Ministers of bis Party.
– No, I was not.
– I am pleased to hear the honourable senator say so.
– I declare that openly.
– I am pleased to hear it. There must have been a lot of the honourable senator’s colleagues who were responsible. That former Prime Minister is a man for whom I have a lot of respect because first and foremost he is an Australian.
– Your leader promised full employment on that night in Blacktown. He promised it without equivocation.
– He promised a lot of things he has gone back on.
– I am pleased to hear what Senator Marriott just said. He is the sort of person I believed he was. I have not heard Senator Wright or Senator Guilfoyle say anything like this but of course Senator Guilfoyle has not been here very long. Senator Durack who led the debate for the Opposition has fallen silent. Senator Bessell also is a new senator. I say again that all that we on the Government side are trying to do, based on an undertaking to the Australian community, the Australian electorate, is revive the John Grey Gorton principles.
– What money are you going to back it with?
– The honourable senator was opposed to his leader then and he is opposing the very concept and principle that one of his leaders introduced some years ago, before we achieved office. We have a commitment and we are prepared to pursue it. The difference between the Opposition and we on the Government side is that we believe that the mineral wealth deposited on the Australian continent or in the offshore areas, the submerged lands which are defined by international law, belong to the people of Australia. What the Opposition is saying in effect is that it does not belong to the people of Australia because we cannot raise the finance. Does the honourable senator who led for the Opposition really believe that we, the Australian people, cannot raise $300m a year to explore and exploit an industry which returns such wealth? The honourable senator should look at the T. M. Fitzgerald report although it was criticised by his supporters and those they represent. It referred to an industry worth over $ 1,000m in 10 years and the Austraiian community subsidised it. That subsidy was gratuitously given by the former Government. Some royalties and taxes were paid back to the Australian community but this community subsidised those companies- by and large they were foreign interests- to the extent of $50m to $60m over that 10-year period, and I probably underwrote those figures because I wanted to be a little conservative.
-T. M. Fitzgerald?
– Yes, the T. M. Fitzgerald report. That is right. What the Opposition has said tonight does point up the sharp difference between its philosophy and ours. All that the Opposition is concerned about is profits and vested interests. What we are concerned about is that these natural assets on the Australian continent and off-shore within the area described by international law should belong to the Australian people and that they ought to enjoy the benefits of them. But the Opposition is saying no and its members are shaking their heads. They say that we could not raise $300m. God Almighty, in the last world war- honourable senators opposite say that this is old hat but like hell it is- a million pounds a day were being spent to prosecute a war to destroy people.
– Or to save people.
– Honourable senators opposite, even Senator Marriott, would have to concede that if that could be done in war time how much easier it could be done in peace time in the best interests of Australia.
– Why are you not doing it?
– Why are we not doing it? Order! I am sorry, I apologise; I am used to being a chairman. If we go back to the period when the honourable senator’s Party -
– You charge me with saying something when I do not speak and when I do you call for order.
– The honourable senator can smile but what I have said is on the record. The honourable senator now is trying to repeat what was done by his former Liberal leader, the architect ofthe Liberal Party, who had to discard the UAP tag because it was discredited during the war. Mem bers of the UAP had to walk out of this place because they could not do anything to help the Australian people in a crisis. That was not the first time and it will not be the last time because honourable senators opposite are going to have to change the name of their Party again.
The ACTING DEPUTY PRESIDENT (Senator Davidson)- Order! Senator Brown, I think you had better come back to the measure.
– With great respect, Mr Acting Deputy President, this is related. At last the Opposition is moving into the Nationalist Party. It will probably move to the National Socialist Party. That connotation is used by people for whom the former Prime Minister, Sir Robert Gordon Menzies, had a great respect. But do not take my word for it. Back in 1934 Sir Robert made a trip to Germany. He came back eulogising Hitler. These are the type of people the Opposition is prepared to back against the Australian people. Let me say one other thing. What I have to say is really worth noting. The Leader of the Australian Country Party, Mr Anthony, just prior to the double dissolution in 1974 advocated the use of strong arm tactics by international oil monopolies against Australian workers.
– Oh, no!
– Oh, yes. Ever since the honourable member has been advocating an additional increase of 40 per cent in the price of oil. That is what he is advocating now. During the course of the last double dissolution he advocated an increase of $1 a barrel at the well head. Honourable senators know that in effect that meant $156m a year net profit to the companies. But then the honourable member talked about world parity. This would have meant $624m a year.
– Some of it was going to the Australian Country Party electoral fund.
-That is for sure. Now Mr Anthony has again advocated an increase of 40 per cent. The Opposition is not fair dinkum within the meaning of the usual Australian colloquial term. The Australian people will see the Opposition for what it is.
– I wish they could see the honourable senator for what he is.
– They will see you for what you are. In 1972 my leader said that we would do these things. He said that we would support the former Prime Minister- the former Leader of the Liberal Party- whom honourable senators opposite sabotaged.
– It is here in ‘Its Time for Leadership ‘-full employment.
– You are too young to know, son. You were not here. We said that we would introduce that legislation proposed by the former Prime Minister. We said that we would have it tested in the legal sense. When the legislation came forward we had a mandate. But the Opposition does not recognise a mandate, lt was prepared to do the very thing which its former leader said was a falsification of democracy. Last year Mr Jim Killen said it was a threat to the parliamentary system. This appears in a very good article which I commend to Senator Baume. It is found on page 4 of the Melbourne ‘Herald’ of 9 April 1 974. Senator Baume may learn something so I ask him to make a note of the article.
This is not a question of delving into technical details. It is a question of whether the Australian community should derive benefits from the natural wealth of this country which is deposited both on the land and on the continental shelf and its surrounds. But previous spokesmen from the Opposition have said: ‘No, you have to have other interests involved ‘. I and my Party are not prepared to accept that I do not believe for one moment that the Australian people are prepared to accept that. They have understood and learnt what has happened in other parts of the world where multi-national interests, vested interests have no concern for the well-being of the community or of the country in which they have invested their moneys. The people realise this is not in their best interests. I ask honourable senators opposite to think about this. I see Senator Wright. I give him credit. I have a certain respect for mm.
– Have you?
-Yes. He smiles and he sneers. I must confess that last night I enjoyed his performance. It may be that today I have excited his imagination because of what I said when I claimed to have been misrepresented. I repeat that this is not old hat. If we could raise money to prosecute a war to defend this nation when the party to which honourable senators opposite belong could not gain the confidence of the Australian people, I think we can do the same thing in peace time to the greater advantage of the Australian people and for the future benefit of this nation.
-We have listened with a good deal of patience to a very fluent speech from Senator Brown who paid us the courtesy of coming in to deliver his speech. That is all we have seen of him tonight. He was preceded by Senator Georges of great turtle fame. Senator Georges mentioned nothing about the legislation. Then we had rallying to the Government’s support that great Liberal from South Australia, Senator Steele Hall. Tonight Senator Steele Hall berated us for opposing these Bills. It was Senator Steele Hall who in 1970 as Premier of South Australia, as Senator Young has reminded us tonight, when a cognate measure was before the Commonwealth Parliament put out his chest and mouthed to the South Australian ‘Advertiser’: ‘We will fight the Commonwealth’s decision all the way. ‘
The report states:
Mr Hall said he hoped the State interest would be upheld in the Senate. The Bill might be defeated there.
The weather has changed and Senator Steele Hall ‘s mind has become somewhat deranged. He comes into the Senate tonight and, full flood with hatred, looking towards the Opposition, he allies himself with the Australian Labor Party, advocating that the measure which he opposed in 1970 should be avalanched through the Senate tonight. God help me: With such a preface I am supposed to bring some rational argument to the Bills. But with all that to mystify a man’s mind I just say that it is a pleasant relief to remind the Senate of some real political facts.
The Liberal Party announced in its policy speech in 1 949 that it would create a Department of National Development. The mineral resources of Australia had been so neglected up to that stage that Mr Menzies thought it would be a contribution to the nation to have a Department of National Development. Not one rational person in the Senate or in the country will deny that it was under the guidance of that Department that the Bureau of Mineral Resources was able to encourage private enterprise into the mineral field. This led to the explosion in the mining industry which followed in the 1960s. It is due to the production in that industry that today this country is maintaining any solvency. That industry now provides an export profit for this country without which we would not be solvent. So much for the Liberal Government’s constructive development of the mineral industry of Australia.
Tonight we are dealing with an off-shore mineral industry. All through our history the mineral industry on the dry land of Australia has been the sole prerogative of the States. When techniques were developed to enable off-shore oil and mineral exploration to be effective, Australia ‘s jurisdiction received another dimension. To our three million square miles of dry land we added an off-shore oil territory of one million square miles which is pregnant with great riches of oil and minerals, and the question arose whether the Commonwealth or the States should control them. So pressing was the need to get on with oil development back in 1968 that the Liberal-Country Party Government put forward the off-shore petroleum legislation, not to enable the Commonwealth to have sole control of the off-shore territory for oil but to enable a cooperative agreement that then had been reached between the 6 States and the Commonwealth to operate in that area so that, with the administration of the States, the jurisdiction of the Commonwealth could be exercised effectively in that territory.
I well remember having had a significant casting vote for the passage of that legislation, being berated by the leader of the Senate Opposition because I would not go over and vote with Labor. Despite the fact that I thought in my own proper and individual judgment that the jurisdiction for oil exploration in the off-shore oil territory belonged to the Commonwealth, as a practical man I voted with the majority so that there could be early implementation of the mineral legislation in relation to the off-shore oil. We then had a very effective committee investigate the whole area. Now we have got to the stage where, by the operation of that legislation and the encouragement that we gave to private enterprise, we produced for this country oil resources that are still providing 66 per cent to 70 per cent of the oil consumed in this country at a price which is the wonder of the world. Through price arrangements that the Liberal-Country Party Government made, oil will be supplied to this country up to the end of next year at a most economic price and Australia has been almost insulated from the Arab oil war. Thus, for that limited time Australia will enjoy unique oil advantages because ofthe actions of the LiberalCountry Party Government.
This Bill is t he fourth gasp of this Government, which on ‘Monday Conference’ Dr Cairns said was producing policies almost off the seat of its pants, admitting to an atmosphere of defeatism because his practical confrontation with the problems of government defied all his theoretical nonsense of socialism- and of course he has never avowedly espoused Communism. So tonight we are dealing with the fourth gasping effort of this Labor Government to apply to the off-shore oil area a code for minerals other than petroleum. This code is the product of the Government in Canberra, with no agreement from any of the States, and it is as different from the oil legislation as chalk is from cheese. This mineral code is the very opposite of the arrangements which were made for oil, and we are asked to acquiesce in the stupidity whereby this Canberra created administrative code for other minerals should apply in the same area where the State codes under the co-operative plan apply in the designated areas adjacent to the various coastlines of the States and the Territories. If one could get anything more strange than that as a practical proposition, tell me.
We assented some months ago to the first part of this Bill, which claimed for the Commonwealth sovereignty over this area in respect of minerals, whether oils or others, and we assented to that for the express purpose of enabling that intensely contentious constitutional question to be decided by the only appropriate tribunal- the High Court. To such extent are we being governed not by Alice in Wonderland but Dr Jim Cairns in fairyland that we are asked, a week or two before the High Court delivers its decision, to put this administrative code into gear so that the tiger can take over control of minerals other than oil in the off-shore oil area.
Look what genius is provided in the legislation. We begin by saying that the mining code that we are so much in love: with shall be applied in this way. The first significant section of the Bill states:
Subject to this Act and the regulations, the provisions of the laws, whether written or unwritten, for the time being in force in the Australian Capital Territory, and of any instrument having effect under any of those laws, and of any award, order or determination of an industrial authority for the time being in force in that Territory, apply, as provided by this section, in the off-shore zone and so apply as if that zone were part of that Territory.
I have been member of this Senate for 25 years and I have adjured governments and public servants and law reformers to tell me in one respect what the law of the Australian Capital Territory is. If one goes to the criminal law one finds that the criminal law of the Australian Capital Territory is in the main New South Wales law that is imported here from Sydney. One can follow it all around the globe, but the genius of this Government brandishes before us a mining code which is expressed to be contained in the provisions of the laws, whether written or unwritten, for the time being in force in the Australian Capital Territory. There is not even a specific reference to the lake, but this inland Territory is the fons et origo for the mining code that Connor and Hewitt shall apply when they set sail on the offshore zone. What a performance in mental potential! Then we notice, of course, that it refers to the laws, written or unwritten, and I expect that that is a timely interlude for Mr Connor to bring in section 61.
Clause 6 1 provides:
I turn to clause 98 and find that it provides:
By that clause, the Minister for Minerals and Energy is empowered to give directions to any person which can be put into the form of regulations on practically any matter, as I see it, that is comprehended under the Act. Let me specify a few of those matters. They include exploration for minerals and the carrying on of operations, the execution of works, the recovery of minerals and the carrying on of operations and the execution of works for that purpose, the conservation and protection of, and the prevention of the waste of, the natural resources of the offshore zone. These are the wide-ranging areas within which regulations may be made. But it is in terms of clause 6 1 that the Minister may give any person a direction.
I heard somebody, I think it was Senator Brown in one of his reminicences of 1934, refer to Hitler, lt was precisely by such legislation that Hitler came to power. Similarly, this legislation purports to be an Act of Parliament but in effect is an authority to the Minister to give a direction to any person as to anything relating to mining in the offshore area. Senator Steele Hall has returned to the chamber. If I mistook not the trend of his speech, he will be voting to give effect to that provision. I draw attention next to clause 10 of the Bill. Under the heading ‘Mining’- this famous code- we read:
Surely it is not necessary to go further than to refer to those 3 clauses to show that what purports to be a mining code is simply a masquerade first for the transfer to the off-shore zone of the laws, written or unwritten, that apply in the Australian Capital Territory to empower the Minister to give to any person notwithstanding those laws, written or unwritten, any direction that he wishes on the subject of mining.
Just to add to your sense of funniness, Mr President, if the person does not comply, the Minister may carry out the work and charge the person the expenses of it. So the Minister can give the direction and, not to be daunted by noncompliance, can move in and say: ‘I will have it done and charge you the bill’. Not even the Minister should give his personal attention to all those matters under section 10 as he can delegate any one of those powers to any member of the Public Service. Is it any wonder that the minerals industry is almost closed up in this area, stagnated and stale, and that the country is being dwarfed in its prosperity by reason of this pettifogging legislation?
So, having given to the Government the right to test its constitutional authority to mine for minerals in the off-shore zone, we are unwilling to apply to that off-shore zone- whereas to oil there is a co-operative arrangement with the States, each State administering its own designated area- an administrative patchwork, for other minerals in the same area, that has its origin in the genius of Connor to give directions on any subject notwithstanding the laws of the Australian Capital Territory purported to be applied to it and with the Minister having the right to delegate any of his powers to any officer of the Public Service. As practical men, members of the
Opposition will not reduce themselves to the stupidity of accepting legislation such as this.
Senator STEELE HALL (South Australia)May I claim under standing order 410 the right to explain where I have been misunderstood?
– No. If you have been misrepresented, yes, but not in respect to being misunderstood.
– Yes, the honourable senator has the right to rise in his place to claim that he has been misrepresented.
-Thank you, Mr President. I understand that Senator Young raised the issue of a statement that I made in another place and in another capacity about the South Australian Government in 1 970. It is true that I made the statement that he read to the Senate. I did so in the position of South Australian Premier. It of course quite clearly illustrates the point that I made earlier in the debate that this issue was brought on by the Gorton Government. I thank the honourable senator for making that clear, against the statements of Senator Wright and Senator Greenwood. The point on which I wish to explain myself is this: I am not willing to stand forever on a decision taken in 1970 and to hold up Australia’s development on a simple stated position which must remain at 1 970 ad infinitum. Someone has to give. Quite obviously my attitude is based on the fact that the High Court will decide the issue. This legislation is ancillary to the challenge which is then decided by the High Court. This is not in any way inconsistent with the stand that I took in 1970, which was a States’ rights stand and which, if it is adhered to forever, will prevent the development and exploitation of Australia’s, hopefully, valuable off-shore mineral resources.
Senator YOUNG (South Australia)-I rise because I consider that I have been misrepresented by the statement just made by Senator Hall. I wish to refer, if I may, to part of the statement that Senator Hall made when he was the Premier of South Australia. He said:
South Australia will not co-operate with the Commonwealth on this matter-
That is with regard to any legislation such as mining codes, etc: as it believes that it should be legislation identical with the existing off-shore legislation.
I do not accept that I have misrepresented what Senator Hall said at the time because -
– Please explain in what way you were misrepresented.
– The honourable senator claimed that I misrepresented him because I quoted this 1 970 statement out of context -
– I rise to take a point of order. I said that I was misunderstood; I did not claim misrepresentation.
– That is why you had no right to be heard.
– I call Senator Wriedt to close the debate.
– in reply- The Senate has been debating for the fourth time the legislation on submerged lands. Let me make it quite clear at the beginning that Senator Steele Hall was quite right when he said that this legislation is substantially the same legislation that was introduced in this Parliament in 1 970 by Prime Minister Gorton. There is no argument about that- or there should not be. Had the legislation then been proceeded with- and there was a majority of members of this Parliament who were prepared to support it- we would not be debating this Bill tonight. It could have gone to the High Court long before this and its constitutionality been determined.
– That is no call to pass legislation.
-Senator Wright went through a theatrical exercise tonight. He talked about everything from turtles to ‘Alice in Wonderland’. I think the Senate would have just about had enough in the time that it has had to listen to him, and mostly it listened to him in silence. I would suggest, as Senator Wright suggested at the beginning of his speech, that we keep to the legislation instead of wandering off, as he did, over other aspects which seemed to be quite irrelevant.
This Government was elected in 1 972 and one aspect of its election platform was to protect the mineral resources of this country for the Australian people. We were re-elected in 1974 on that basis and since then have endeavoured to bring this legislation forward to ensure that the interests of the Australian public were protected. The whole idea of bringing the legislation on was to ensure that it could be challenged in the High Court and determined and one of the reasons why there has been uncertainty in the industry is that that challenge has not come about and there has not been a final decision on the law relating to this subject. That has not been the fault of this Government. It has been the fault of those who oppose this legislation, not only this Bill but also the legislation in respect of petroleum. One wonders what is their motivation. The case for the Government’s approach towards minerals was, I thought, most adequately set out by Senator Georges who made an excellent and reasoned contribution to this debate. It is a pity that those honourable senators from the Opposition side who followed him did not at least attempt to answer the points which he made. Instead we heard a rambling statement, especially from Senator Wright -
– We always do.
– We expect this, of course. He concentrated on the powers of direction given to the Minister, this terrible man whom we have heard castigated before in this chamber- Mr Connor, the Minister for Minerals and Energywho has probably done more to protect the interests of Australia in 2 years than any other person has done in the history of this country. History will record one thing about Mr Connor and that is that he had the courage to defend Australia’s rights in this matter. Of course, we need overseas capital to assist in the development of the country but we do not need it to the point where overseas investors are on a bonanza, as they were prior to the advent of this Government. They knew then that vast sums of money could be made easily in this country because we had a government which just did not care and allowed them to develop these resources willynilly.
I draw the attention of Senator Wright to clause 97 of the Bill. I also point out that the powers of the Minister under this Bill are similar to the powers under the petroleum legislation, an Act that Senator Wright was prepared to defend during the time that he spoke. Clause 97 states quite specifically:
The Minister shall lay before each House of the Parliament, within 1 5 sitting days of that House after 3 1 December in a year, a report concerning the operations of this Act during that year.
I believe that it is important for the sake of the record that we look at clause 63 which again does not give the Minister the right to do precisely as he wants to do, as was suggested during the course of the debate. Clause 63 states:
Where a direction that is inconsistent with the regulations is given under section 6 1 , the Minister shall lay a copy ofthe instrument by which the direction was given, together with a report by him of the reasons for the giving of the direction, before each House of the Parliament within 1 5 sitting days of that House after the giving ofthe direction.
In other words, the normal precautions have been written into the Act to ensure that there will be no abuse by any person who happens to occupy that position now or in the future.
I am sorry I have to mention one or two other matters because they are not directly related to the Bill but as they were raised in the debate I am obliged to answer them. Senator Durack said that if the Opposition were in power it would do it a different way. Senator Hall took up this point. We were not told how it would do it. How was it going to do it back in 1970? Let us look at the second reading speech of Mr Swartz, the Liberal Minister who introduced legislation into the House of Representatives on 16 April 1970. This is what he said:
The present Bill will be followed later in this session by an off-shore mining Bill by which the Commonwealth will exercise sovereign control, in respect of mining for all minerals other than petroleum, on the seabed and in the subsoil of the whole area to which the authority of the Commonwealth extends.
It was quite clear what Mr Swartz ‘s intention was and, I would say, quite clear what was the intention of the then Liberal Government. Of course we heard the usual accusations that this Government is out to denigrate private enterprise and it does not want to work with private enterprise. I think it was Senator Young who went so far as to say- I am sorry, it may not have been Senator Young but certainly it was someone on the Opposition side- that we were out to destroy private enterprise. We heard the usual sort of thing, and the question of overseas capital was raised. The Government has not taken the attitude that overseas capital is bad in our development but it believes that it should be controlled. Of course it should be, and the overwhelming majority of Australians believe that it sould be controlled. Is it possible for a country of this nature to ensure that it has sufficient equity in the development of its resources? This is the aim of the Government. This is what we are doing and this is why we formed a Petroleum and Minerals Authority and a Pipeline Authority. These are difficult bodies to institute- we do not deny that- and -we know that we rub up against some very powerful private interests when these things are done. But we will not be deterred by someone saying that he does not like what we are doing.
Finally I want to quote specifically some figures concerning exploration because this matter was raised twice during the debate. Senator Young spoke of the great downturn in wells drilled. I would have thought he would have followed it up with some convincing figures but we did not get any at all, so we will write them into the record. These figures cover the years from 1970 to 1 974. In respect of exploration drilling- I will give the figures to the nearest thousand metres for brevity- in 1970 there were 68 000 metres drilled, in 1971 there were 58 000- it dropped by 10 000 but that was no particular reason to criticise the Liberal Government of the day-in 1972 it rose to 1 17 000, in 1973 it fell to 88 000 and in 1974 it was 90 000. There was an increase in 1974 over 1973. The number of exploration wells in 1970 was 22, in 1971 it was 19, in 1972 it was 30, in 1973 it was 24 and in 1974 it was 26 wells.
– Are you speaking of calendar years or financial years?
– I am speaking of a calendar years.
– So it is to 30 December 1 974. 1 doubt whether the figures would be available yet.
– The number of extension wells in 1 97 1 was one, in 1 972 it was 8, in 1 973 it was 7, and in 1974 it was 7 wells. The number of drill rig vessels, Australian registered, has remained the same and the number of such foreign vessels has remained at four. It was 6 in 1973, 5 in 1972 and 4 in 1971. Where is the evidence of this dramatic decline in the rate of exploration? There has, of course, been some decline because of permits.
Mr President, I would ask for some measure of protection from Senator Webster’s interjections. When he is in the Chair he is always using his authority to ensure that everybody behaves and does not interject. He becomes a paragon of virtue until he returns to his seat. That has always been his form since he has been Chairman of Committees. These are the facts of exploration in this country and it is quite evident that the Australian Government is taking steps which will protect the Australian nation. I know that this legislation will be defeated, but the Government has tried as much as it possibly can to bring before this Parliament legislation which could be accepted and which had been drafted in a reasonable form. We will not succeed and the matter now will have to be resolved by the High Court. But at least it is on the record that this Government has endeavoured to meet the obligations and commitments it made to the Australian people in 1972 and restated in 1974 which the Australian people supported then and which they will support again in the future.
That the Bill be now read a second time.
The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)
Question so resolved in the negative.
Consideration resumed from 20 February on motion by Senator Wriedt:
That the Bill be now read a second dme.
That the Bill be now read a second time.
The Senate divided. (The President- Senator the Hon. Justin O ‘Byrne)
Question so resolved in the negative.
Debate resumed from 20 February on motion by Senator Wheeldon:
That the Bill be now read a second time.
– It will be no surprise to anyone when I say that the Opposition will be voting against this Bill.
– It is not a surprise.
-It is no surprise to the honourable senator or to anyone else because we have maintained a consistent approach to the national health scheme which has been proposed by the Government. We have opposed it on practical and philosophical grounds and we will oppose consistently any Bills which are related to the introduction of a socialised health scheme in this country. The Bill with which we are dealing tonight is designed to destroy the legislative arrangements which give the voluntary health scheme its existence and because this Bill has that purpose it must be opposed by the members of the Opposition. We have opposed at all times the introduction of this scheme. We have said consistently that the introduction at this time of a compulsory health scheme for the Australian people does not have the support of us, as parliamentary representatives, or of the people upon whom it will be imposed. This Bill prohibits the payment of Commonwealth health benefits after a date to be proclaimed; that is, it removes the Government’s support from the voluntary health scheme which is now serving the Australian people. Clause 1 1 of the Bill prohibits the payments. This means that the partnership between the people and government would be sustained no longer.
– Between whom and government?
-It is between people and government- people who have taken a measure of responsibility privately to insure themselves and who have had support from government in the voluntary scheme which has been in existence. This Bill also makes it illegal for organisations to continue to provide health insurance after a date to be proclaimed by the Minister. Clause 16 of the Bill provides a penalty of $1,000 for each day during which a contravention continues. This measure will make illegal the continuity of voluntary health insurance funds as they are and as they serve the Australian people. The Minister for Social Security (Mr Hayden) has stated that the health funds will subsequently be re-registered if they desire to be re-registered, but we have no knowledge of the form that that legislation for re-registration would take nor at what time the Minister would permit a re-registration. If we permit the passage of this Bill it would mean that the health funds would be required to discontinue their operations and then their re-introduction for the services which they may give would be at the prerogative of the Minister. It is essential that there are voluntary health funds, even if Medibank does start its operations on 1 July.
– Why would it not do so?
– The honourable senator would have said ‘Why would it?’ if he had been listening to what I have said.
– It has been legislated for.
-It has not been legislated for. The Bill with which we are dealing is to discontinue the voluntary funds.
– You said that Medibank would start and I said ‘ Why would it not do so? ‘
– If the honourable senator will allow me to continue and if I can have some protection from you, Mr President, I will continue my remarks. If Medibank starts on 1 July it will be necessary for the Australian people to have access to some form of health insurance that will cover them for private hospital care. That seems to be overlooked in the present Bill which will dismantle the voluntary health schemes which may be re-introduced and re-registered by the Minister according to his own timetable and in his own way. This Bill also provides for the Government to take over the funds’ liability for nursing home benefits and authorise the Health Insurance Commission to carry on health insurance to ensure that contributions to funds which cannot meet their obligations are covered. It is no surprise that such a provision is required because during the past 2 years the actions of the Government have forced the funds into a situation in which there is a strong possibility that they will no longer be able to meet their commitments. The action of the Government not to recognise the effects of inflation on costs, and added costs, which must be sustained, has placed the funds in the position in which the provision that I have just mentioned is a distinct possibility.
We have stressed our opposition to the health scheme. We showed at the time of the Joint Sitting of Parliament that we are still resisting the introduction of a compulsory, nationalised and socialised health scheme in this country. We defeated the health levy Bills which were designed to provide for a levy of 1.35 per cent on each taxpayer in this country. This Bill, which is designed to repeal the existing legislation by which the Commonwealth has been required to support the voluntary scheme, means that no longer would there be any support from governments for those people who wish to continue some voluntary cover.
– Where does that money come from to subsidise the existing scheme?
-It comes from the Australian people, just as the whole cost of this scheme will come from the Australian people.
– Contributed voluntarily, I presume? The taxation that finances the existing scheme is contributed voluntarily?
– The honourable senator may make his own speech. The honourable senator has asked where the Government contributions comes from for the existing health scheme. As with every other government program it comes from the Australian taxpayer, from Consolidated Revenue in this country. To suggest that there has been anything free in the existing scheme or that there will be anything free in the proposed scheme is to overlook that government has to obtain funds from the Australian people and then appropriate them according to the programs which have passed through both Houses of the Australian Parliament. The present voluntary scheme has been designed to cover the Australian people and their needs. It has been freely acknowledged that it has been a development which suited the needs of the Australian people and progressively has maintained a system of health care which has served the community. We acknowledge that there are gaps in the scheme that we would like to see improved.
– What improvements are they? You will not tell us.
– If the honourable senator had listened to the debate on the last occasion that we had to reject a Bill connected with health scheme he would know that we wrote into the Hansard of the Australian Parliament the program that we, as an alternative government, would establish as a voluntary health scheme in this country. We would like to see improvement in those areas which relate to pensioner patients in this country, to migrant groups and to lower income groups. We believe that those gaps may be -
– What about the referral system?
– Order! The honourable senator has asked for the protection of the Chair. I insist that she is protected and, according to the Standing Orders, she must be heard in silence.
– Thank you, Mr President. I shall continue to talk about the proposed scheme which relates to the Bill with which we are dealing. It would have to be acknowledged that it is a scheme which does not have the support of at least 4 State governments in this country. It would also have to be acknowledged that the scheme does not have the support of the professionals and the experts and all those people who are required to be involved in the delivery of health care. The Government does not have the financial resources to provide the thousands of millions of dollars that are conceived in the compulsory health scheme about which the Government is talking. It does not have the insight of government to recognise that the consequences of the destructive path which is being pursued against health care in this country are very serious consequences indeed.
I think it is fair to say that the introduction of this scheme has divided the Australian community. It has been an attitude of government to have confrontation with every group in this community which is involved in the introduction of this proposed socialised health scheme. Confrontation has occurred with the medical profession, with the private hospitals, with the ancillary services, with the Australian people themselves, with the private hospital insurance funds and with all those people who are associated with a health scheme and who would be required to cooperate in its implementation.
The Government has retreated from many of its socialist plans in many of its other operations. I ask the Government again, as we face the consequences of the introduction of this scheme on 1 July, why it does not recognise that again its ideology is not matched with the consequences of some of the things which it has desired to change in this country. The social experiment of nationalising Australian industry has resulted in 300 000 people being unemployed in this country and a golloping inflation rate approaching 20 per cent at present. If we are to translate that sort of ideology of socialism into the field of health care and the requirements of the Australian people, it would surely be appropriate for a responsible Opposition to say again to the Government: ‘Retreat from your socialist plans in this country and acknowledge that health care cannot be dismantled overnight’. A social experiment is too risky in this very personal service. Why has the Government found it necessary to denigrate every group which is associated with health care? Why has the Government needed to talk to State governments of the way that public hospitals could be commandeered by the Commonwealth or starved of Commonwealth funds to the extent that the hospitals could not operate? Why is it that it does not acknowledge that there is no provision for the continuity of private hospitals in the present health scheme?
We have to talk about the confusion that is now arising from the Medibank advertisements which are being placed in the mass communications services of this country. To tell people that the scheme is free is, I believe, misleading to say the least. It is not a free scheme. It can never be a free scheme. Why should it be a free scheme? If the people of this country require health care, education, roads or any other services they will pay for them. They will not have a free scheme. It may be accurate if the advertisements were to say that it was a non-contributory scheme at consumer level. To say it is a free scheme is misleading the Australian public. If we acknowledge that the scheme, in its first year of operation, will cost something like $ 1,600m to implement -
– You are guessing.
– That is an actuarial basis which has been acknowledged by the Government. The Minister for Social Security gave figures in 1973 of more than $ 1,000m. I think the honourable senator would agree that -
– Did you talk about free milk in schools when we removed it? Was that free? Who paid for it?
– These are the things where we mislead the people as to the requirements. Let me finish this particular thought. We can talk of something like $ 1,600m, give or take $200m. No one knows the accurate cost. I am saying that taxation in this country will increase by something like 7 per cent if personal taxation is to cover the cost of this scheme. The cost has been shared by people accepting responsibility in the past. Now we are imposing upon the people a government program with an open-ended cost and all of the enormous costs which are related to any bureaucratic bungle of this magnitude proposed by any government. I think these things should be recognised. I do not for one moment believe that the way in which the Government has embarked upon a scheme of advertisements to mislead the Australian people at this time is fair, in view of the way in which it is presented to the Australian people.
– What do we pay for repatriation? We pay $600m a year.
– Yes, and we all pay for it.
– Why should we not pay for it? That is exactly what we are saying with the health scheme. Even if it costs $600m it is a need that ought to be met.
-Certainly. I believe all needs should be met. With regard to health care I believe the role for government is to cover those people who are unable to cover themselves. The lower incomes group -
– There are about one million people without cover.
– The honourable senator can talk about one million people. If he wants to make that the top figure we acknowledge that one million people may not be covered. If we are talking about one million people why does the Government not concentrate on improving the facilities for those and allow other people to accept their own responsibilities. Health care is certainly a responsibility for every individual Australian to accept for himself and his family, and the role for the Government is to provide the means for services to be made available and accessible to people in the community but certainly not through a scheme that involves a program of this magnitude at this time.
– What about the child whose family has not provided for health benefits?
-I would assume that that child would receive treatment in any public hospital system in this country. To pretend that 85 per cent, 89 per cent or whatever percentage it is of people who already accept responsibility for health care should have to have their system changed and should have to have their resources mobilised to take care of those minority groups who are not covered seems to me to be a point of absurdity for the Government. I would think the Minister for Repatriation and Compensation (Senator Wheeldon) would see that point if he were fair.
We talk about the way in which we have designed a national health scheme at present. We have never asked whether a national scheme and voluntary health insurance could live together. Perhaps we could improve the existing scheme to provide additional opportunities for health to be delivered to the Australian people. I think we are overlooking the fact that for any scheme to be successful there needs to be cooperation amongst those people who are associated with it. It is not simply a matter of talking about some sort of civil conscription for doctors on a sessional basis and it is not a matter of saying that public hospitals will be forced to admit patients. It is a matter of saying that we really need experts to get together and to devise what is the best means of using all the resources that have been developed and seeing that they reach the individuals in the Australian community. I think this is perhaps where we differ very markedly from the Government supporters who sit in the Senate and those who form the Government.
– Your Party is not opposed to conscription. It was not opposed when you sent those 20-year old kids to Vietnam.
-I think in this debate, recognising that we have people listening, honourable senators opposite should allow me to put to the Australian people that I think it is necessary to advise them at this stage that they should continue to pay their voluntary hospital insurance so that if, on 1 July, the Government proceeds with the introduction of Medibank, a whole lot of Australians will not be without cover which will give them private hospital care. To assume that on 1 July the public hospitals of this country will be able to provide admission for all those people who need health care is to overlook the statistical information that is available to all of us, and that is that it just simply could not happen. I say to those people who may be listening that it is a requirement at present that they continue with their voluntary health insurance for private hospital care. It is essential that Medibank advertisements advise people of that requirement so that they are not left on 1 July with an enormous cost and no opportunity to be admitted to a public hospital. I think these things are important and this debate should be used to iron out some of the difficulties that will be experienced by the Australian people and not start talking about a war in Vietnam or any other matter that honourable senators opposite seem to think is relevant to this situation.
– Order! In conformity with the sessional order relating to the adjournment of the Senate I formally put the question:
That the Senate do now adjourn.
Question resolved in the affirmative.
The following answer to a question was circulated:
Senate adjourned at 11 p.m.
Cite as: Australia, Senate, Debates, 26 February 1975, viewed 22 October 2017, <http://historichansard.net/senate/1975/19750226_senate_29_s63/>.