26th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMuIlin) took the chair at 11 a.m., and read prayers.
– My question is directed to the Leader of the Government in the Senate. Is it correct that the Foreign Affairs Committee of the Russian Parliament has recommended that Russia should ratify the Nuclear Non-proliferation Treaty? Is it correct that the United States has indicated that it is only waiting for the Russians to indicate their adherence to the Treaty before taking a similar step? When both these great nuclear powers have declared their intention of accepting the pact to halt the spread of nuclear weapons, will the Australian Government then join the other ninety-two nations which have already signed the Treaty, thus signifying Australia’s desire - if the Government has the desire - to join the search for peace?
– The position in relation to the Nuclear Non-proliferation Treaty is that, whilst it is true that some ninety-two countries, give or take one or two, have signed the Treaty, it is equally true that Russia and the United States of America have not ratified it. In fact, Australia’s position is quite clear. The situation is that Australia wants to be satisfied that the Treaty would be an effective treaty and would be in the best interests of Australia before it will ratify the Treaty. That is a decision that has to be taken and will be taken by the Australian Government against the background of what is fit, proper and best for Australia in terms of the peace of the world, as the honourable senator suggests.
– 1 ask the Minister for Repatriation a question. In the television programme ‘This Day Tonight’ presented last evening a Dr Whiting made serious allegations against the repatriation system. These allegations were repeated in this morning’s Press. Will the Minister take steps to refute these accusations?
– 1 would like to say, firstly, that yesterday I received an invitation to appear on the programme mentioned by the honourable senator. I declined the invitation. My reason for doing so was that I thought it would be giving unwarranted importance to the subject to be discussed. However, I did make certain comments in connection with the programme which, I understand, were not broadcast. A couple of days ago I referred to the book written by this gentleman as scurrilous rubbish. 1 now repeat that that is my opinion. I would like to refer briefly to some of the statements which, apparently, were made last night. They bear out my opinion of the book. Speaking of his book the author said: lt is fiction based on fact. J had to do it this way because I am a doctor, and AMA ethics dictate that J do it this way. There is at the end a factual appendix.
He went on to say later that he would not say that there were patients in repatriation hospitals taking money under false pretences. He said that the law, as it stood at the moment, was so loose that an exserviceman or woman could get an entitlement and pension for practically anything. Mr President, that statement is a downright lie. I repeat: lt is a downright lie.
During the last 5 years, or almost, I have made a practice of visiting our repatriation hospitals in each State on an average of at least twice a year. 1 have visited some hospitals four times in a year. During those inspections I have seen hundreds of exservice men and exservice women. Invariably I question them about their ailments and never yet have I had a suspicion about one of those individuals as to whether he or she should be in hospital. This experience is borne out by a stall reporter for an Adelaide newspaper who, on 19th August, wrote an article in connection with this matter. I would like to claim the indulgence of the Senate because I think it important to read an extract from that article. He said he visited the hospital and he saw a World War II veteran, his neck heavily braced in harness, who was overcome with anger. The article states:
I’ll tell Dr Whiting what’, he said. ‘If it were not for the “ bludgers “ he talks about, none of us might be here today’.
And an incapacited colleague was just as upset.
When I get out of hospital and go back to work, all my friends are going to think I’m a bludger - and I know I’m not’.
The writer of the arctile went on to say:
These were only two of the patients at the Repatriation General Hospital, Daw Park, who attacked Dr John Whiting for his claims that repatriation hospitals arc full of ‘drunks and nohopers’ trying to win war-service pensions and entitlements with falsified complaints.
The patients retorted: ‘He’s only someone with an axe to grind.’.
This opinion was confirmed by Dr Dearlove who is the hospital’s medical superintendent. A psychiatric specialist, Dr Williams, was interviewed also and he said that he had been trying to find a malingerer for more than three months in order to demonstrate some psychiatric disorders to students. He said that they could not find a malingerer.
Let us consider this matter. How do these people get into these hospitals in the first place? An application is made to the Repatriation Department in the State in which they reside. This is decided by the Repatriation Board in the first place. If the Leader of the Opposition, who is interjecting, does not want to listen, then that is OK.
– Mr President, I take a point of order now that the Minister has referred to me. I think the honourable senator is wandering ail over the place. He is entitled to answer the question but he is not entitled to make a speech. This is question time. I suggest he moderate his answer and not make a speech.
– Order! I have no control over the way in which the Minister answers the question.
-I have already stated the initial step that has to be taken. This is important to those people who want entitlements from the Repatriation Department. If the Repatriation Board in the State concerned turns down the application then the applicant has the right of appeal to the Repatriation Commission. If it is then turned down the aplicant has the right to go to a War Pension Entitlement Appeal Tribunal. If he is not satisfied with the assessment made he has the right to appear before a War Pensions Assessment Appeal Tribunal. This is the machinery that is available. If it so happens that at times somebody slips through and is not entitled to the benefits he or she receives, then I would rather see that happen than to see people not get what they are entitled to. Section 47 of the Repatriation Act states that any doubt in the mind of the determining tribunal must be exercised in favour of the applicant. Mr President, that is all I want to say.
– Will the Minister representing the Minister for Trade and Industry make an investigation of the officious and bureaucratic action of Australian Trade Commission officials in Christchurch, New Zealand, who restrained Mr Brahan Young of Elwood, Victoria, a third generation Australian citizen, from re-entering Australia because of the colour of his skin? Have Qantas Airways Ltd officials in Christchurch, New Zealand, the right to demand the passport of an Australian citizen when such a passport is not required for travel between Australia and New Zealand? How long has the ridiculous situation existed in which Trade Commission officials need 2 days to obtain proof of an Australian citizen’s right to re-enter? Does not the Minister think that an apology and a sincere attempt at compensation for this grave affront to the rights of an Australian citizen are warranted?
– I feel bound to say that the honourable senator has asked a question and has made his own judgment. Firstly he asked for the facts and then, without obtaining them, he made a judgment as to what happened. I think the proper course is for me to seek the facts and make them available to the Senate. Then Senator O’Byrne, if he wishes, can ask another question. I was rather surprised at the reference both to Qantas Airways Ltd and to the Australian Trade Commission. I suspect that the honourable senator has pre-judged the case, which would be a very wrong thing to do. I will obtain the facts and make them available.
– My question is directed to you, Mr President, and concerns standing order 406 which simply states that no honourable senator shall read his speech. Would you refer standing order 406 to the Standing Orders Committee with a view to having it amended or completely deleted if it is not to be observed?
– This matter has been raised in the Senate on many occasions. Senate practice is to allow a Minister to read his second reading speech. But it is recognised that, where an honourable senator is dealing with an intricate matter and where he wishes to be quite sure of his facts and wishes to pay reasonable attention to the subject, he may use what can be referred to as copious notes. Honourable senators seem to be under a good deal of misunderstanding about the reading of speeches. 1 certainly will refer the matter to the Standing Orders Committee, but I do not think that will help very much. The practice that I follow is to rule that no honourable senator shall read his speech without leave of the Senate, but I have held that copious notes may be referred to. The person who makes up his mind about copious notes is the man in the Chair at the time.
– My question is directed to the Minister for Repatriation and concerns the Dr Whiting charges. In view of the many cases which have been put to him personally by applicants for repatriation benefits who feel that they have not secured justice from the Repatriation Department, and in view of the contributions made in the debate in the Senate about this general matter, after which the Senate decided that a Senate select committee should be set up, will he take back to the Government the decision that this committee ought to be set up so that it can consider the views of those who feel that they have not received justice and those who feel that in some cases the benefits have not been what they should have been, and so that all other matters may be considered properly by all people concerned?
– 1 am advised that the Government has considered this matter and that a decision has been made. I do not see any point in once again bringing this matter to the Government’s notice.
– My question is directed to the Minister representing the Minister for External Affairs and is supplementary to one asked by Senator Murphy concerning the Treaty on the NonProliferation of Nuclear Weapons. If Australia did sign the Nuclear Non-proliferation Treaty, would we have to accept so-called inspectors from no matter what country, have no control over who these inspectors might be and be expected to pay their expenses while in Australia? Could these so-called inspectors visit and investigate any industry or mining enterprise which they might choose on the grounds that the industry or enterprise might possibly have some remote relationship with nuclear affairs?
– It is true that there are provisions for inspections in the proposed treaty. I do nol propose at question time to respond to questions relating to details because, quite clearly, it is not a matter that lends itself to discussion at question time. I repeat what I said to Senator Murphy: The Commonwealth of Australia has to satisfy itself in the first place that any and all of the conditions would be effective and in the best interests of Australia. Until it is so satisfied, it quite properly refrains from coming to a decision in relation to the ratification of the treaty. I do not think anybody could quibble at the exercise of that responsibility by the Government. It needs to be satisfied in every degree that the conditions of the proposed treaty would be effective and in the best interest of Australia. Until it is satisfied on those points, then, very properly, it will not make a decision in relation to the matter.
– 1 ask the Leader of the Government in the Senate: Has there been any reaction from Russia to Mr Freeth’s invitation to Russia to extend its sphere of influence to the Pacific area?
– I acknowledge the question as one taken from a statement made by the Minister for External Affairs in another place, which the Senate declined to have read. I say to the honourable senator that his question represents a complete misunderstanding, misinterpretation and lack of appreciation of the statement made by the Minister for External Affairs.
– I address a question to the Minister representing the Minister for Trade and Industry. Is it a fact that imports of Canadian canned pig meat increased from 68,000 lb in 1967 to 321,000 lb in 1968? Are any restrictions placed upon the importation of canned pig meat into Australia? With the great increase in production of Australian pig meat, will the Minister give some consideration to restricting imports by quotas or some other means if it is found that they are adversely affecting the Australian pig industry?
– The answer to the first part of the honourable senator’s question relating to Canadian canned pig meats is yes. As to the second part, canned pig meat is dutiable at 10% and S0.05 per lb general rate or 5% and $0,019 per lb preferential rate. There are, of course, also very strict quarantine requirements in force relating to the importation of canned pig meat into Australia. These are designed to prevent the introduction of animal diseases into this country. As to the third part of the honourable senator’s question, I would say that it is a long established Government policy that adequate protection against import competition should be accorded to economic and efficient Australian industries. Any industry which considers that it is operating at a disadvantage with respect to import competition can approach the Department of Trade and Industry and seek to have its case referred to the Tariff Board for inquiry and report.
– Is the Minister representing the Attorney-General aware that John Zarb has been adopted as a prisoner of conscience by the Scandinavian groups of Amnesty International? Is he aware that a very large number of Australians are ashamed that this young man is languishing in Pentridge gaol as punishment for his beliefs and that they expect the Government to let him out without delay? Why is the
Government taking so long to deal with the petition for his release on compassionate grounds?
– I am not aware of his case being adopted by some international body. The second part of the honourable senator’s question is framed in a shabby manner that is so characteristic of him. The honourable senator was informed as late as-
– I rise to order, Mr President. Is the Minister transgressing the Standing Orders when he refers to a question as being framed in a shabby manner that is so characteristic of an honourable senator? It seems to me that he is transgressing the Standing Orders and that therefore he should withdraw his statement. I ask for a withdrawal.
– 1 think the Minister is going further than he should and 1 call upon him to withdraw.
– In deference to your ruling, Mr President, I withdraw the words although I am in the presence of honourable senators who yesterday glibly referred to other honourable senators as being infamous and who talked about terrible injustice and so on. I am now replying to a question that imputes to the people of Australia a sense of shame although they were assured as late as yesterday that a petition which had been presented last week would be given prompt consideration by the Attorney-General. Yesterday I said that we might expect an early announcement of the decision upon that matter, but Senator Cohen comes in as a mere bandwagon politician and seizes upon the prisoner’s unfortunate circumstances. Mr President, the honourable senator can be assured that the Government will give prompt and earnest consideration to all aspects and that in due course the decision of the GovernorGeneral or of the Government, as the case may be, will be made known by the proper authority, the Attorney-General.
– I wish to ask a question of the Minister representing the Minister for Shipping and Transport. What progress is being made in the construction of the Broken Hill-Cockburn section of the standard gauge railway line? When is it anticipated that traffic from Brisbane, Sydney and Melbourne to Perth and Fremantle will commence moving over this section of the line?
– 1 understand that considerable progress has been made in talks between the Minister for Shipping and Transport and the company concerned, the Silverton Tramway Co. Ltd, in relation to this section of the line. Agreement is expected to bc reached in the near future. 1 believe that the line will be ready for the carriage of goods before Christmas and for the carriage of passengers early in the New Year.
– My question, which is apropos a question asked earlier by Senator Bishop of the Minister for Repatriation, is addressed to the Leader of the Government. By the exercise of what powers did the Government over-ride the decision of the Senate to set up a select committee to inquire into the provisions and administration of the repatriation legislation?
– I know of no decision or resolution to set up a select committee.
– Of course there was one. lt was in September of last year.
– Let us be careful about this. As I understand it there was no resolution of the Senate to set up a committee.
– No, but views were expressed.
– The honourable senator is using other words now. I repeat that there has been no resolution of the Senate to set up a select committee on repatriation.
– There was an expression of opinion.
– I am not interested in expressions of opinion. I am repeating what 1 have said three times, and the Opposition will not accept it.
– You are denying it thrice.
– That is right. I am not unaware of the despicable implica tions in the comment made by the honourable senator. I ask what he meant when he said I had denied it thrice. That was a despicable comment.
– Mr President, I rise to order. I ask for a withdrawal of the word despicable’. I said that the Minister was denying it thrice, lt was a good-humoured comment, lt was said in jest.
– The honourable senator should learn to control his tongue.
– And Senator Marriott should learn to control his behaviour, as he was told by Senator Turnbull on one occasion.
– Order! It is too early in the morning for all this disputation.
– I agree completely that it is too early. I made a comment in jest, a comment which I thought was rather obvious. I meant no offence by it. The Minister seemed to get very excited and used the word ‘despicable’. If that remark was despicable there must have been 100 occasions in the past when I said something despicable in jest. I ask for a withdrawal of the word.
– I agree that it is too early in the morning. If Senator Willesee made that remark in jest 1 am prepared to accept it.
– I ask for a withdrawal.
– 1 withdraw, on the understanding that he did not intend any of the implications that I read into his remark. I continue from where I was before in answering Senator Milliner’s question: No select committee on repatriation has actually been set up by resolution of the Senate. 1 accept that suggestions have been canvassed in debate.
– There was an expression of opinion.
– There was an expression of opinion by the Senate, but there has been no resolution by the Senate in terms of setting up a committee or inviting the Government to nominate so many members and the Opposition to nominate so many members who should have the right to move from place to place, to call witnesses and take evidence. In fact no select committee has been set up.
– I address a question to the Minister for Customs and Excise. Some time ago 1 advocated the use of trained dogs to detect the smuggling of narcotics into Australia. Can the Minister report any progress on this project?
– I remember the honourable senator asking a question late in the sessional period last year in relation to the Department using dogs with a very keen sense of smell to locate marihuana. In April of this year I wrote to the honourable senator advising him that the Department had decided to endeavour to have dogs trained so that at least two dogs would be available to perform this work. I now advise- the honourable senator that the Department gave permission for a trainer to train several dogs for this purpose. Of the several dogs trained only one was found to be satisfactory, that one having a keen sense of smell.
– Is he a drug addict too?
– That dog is expected to be operational by about the end of October this year.
The answer to Senator Prowse’s interjection is that the trainer of the dogs does not use drugs or endeavour to get the dogs to become drug addicts in order to do the work for which they are trained.
– I ask the Minister representing the Treasurer whether the Federal Government has acceded to the request of the Victorian Government that Federal assistance be granted to producers of dried fruits the production of which was very seriously affected last year by natural disasters.
– I am not aware of the current position. I will get the facts and make them available to the Senate.
– Has the Minister representing the Attorney-General read the leading article in today’s Canberra ‘Times’ which refers to the censure motion debated in the Senate yesterday? Did the AttorneyGeneral, as implied in the leading article, have strong evidence against the defendant
Pratt which was not presented to the magistrate? If so, why was such evidence not presented?
– I have read the leading article to which the honourable senator referred. It is important to notice that it suppresses, although the writer of the article must have known, the fact that the question addressed by Senator O’Byrne and answered by me asked for an assurance that there would be no repetition of the misuse of the Crimes Act on evidence as flimsy as was used for the purpose of the search. The question went on to impute political motives in the circumstances leading to the warrant and asked that we not use legal procedures against Newton in an election year. The leading article to which Senator Cavanagh has referred is a highly objectionable piece of journalism for having suppressed those elementary facts. Further, the article pays no attention to the second question and does not even state that Senator Cavanagh asked me a direct question as to my opinion of the evidence before the court. 1 stated clearly, after referring to the magistrate’s judgment, that my opinion was that there was not only evidence but strong evidence that the manuscript extending over 2 or 3 pages of foolscap, written out so deliberately by Mr Pratt for the purpose of the Press, had been communicated to the Press. Therefore I think it is necessary that the writer of the leading article referred to be reminded of the true basis of the questions and answers in the Senate and should comment on them on a true basis of fact.
– My question to the Minister representing the Minister for Trade and Industry is supplementary to the previous question regarding imports of Canadian pig meats. Does the Minister believe that any attempt by Australia to restrict imports of such meats could bring retaliatory measures by Canada restricting our exports of lamb and beef to that country?
– The whole art of international trade has to be examined and understood in terms of issues such as the honourable senator has raised. I think it would be far more appropriate for us to invite the Minister for Trade and Industry to give a considered reply to the question. When one negotiates an international trade agreement it frequently happens that all commodities in a classification - in this case meat - are brought into consideration. Therefore to take one particular type of meat - in this case canned pig meat - and deal with it in isolation could have, in certain circumstances, an influence on other meats. I accept the question but, as 1 have said, I think the proper thing would be to put it on notice and have the Minister for Trade and Industry give a considered reply to it.
– I direct my question to the Minister for Repatriation. Is there any truth in the statement one hears in Parliament House that the Minister intends to resign his portfolio? Is this intention to resign due to the Minister seeing the writing on the wall in regard to the forthcoming election, or is it due to pressure from ex-service organisations in an attempt to get the Government off the hook with ex-servicemen?
– Answering the last part of the question first, I am not aware of any pressure from ex-service organisations to have me removed from my portfolio as Minister for Repatriation. I have no intention of resigning from the Ministry. I do not think that the Government is on any hook in regard to repatriation. After all, this year we have seen the greatest improvement in repatriation benefits for some years. This is accepted by ex-service organisations. I think the other suggestion was that the Government might be displaced. If the Government were displaced I would not have an opportunity anyway to become the Minister for Repatriation.
– My question is addressed to the Minister representing the Attorney-General. Did the AttorneyGeneral’s Department have strong evidence against the defendant Pratt which was not presented to the magistrate in the committal proceedings? If so, why was it not presented?
– In my view the evidence that the prosecution presented to the magistrate was strong evidence that two cables of some length and one Cabinet minute were prepared by Mr Pratt in manuscript for Press purposes and were published in the Press a few days later. That is strong evidence that they were communicated to the Press by Mr Pratt.
– I address my question to you, Mr President. Has there been any arrangement between yourself, the Deputy President and the various Acting Deputy Presidents to subvert standing order 406, which is very explicit? It reads:
No Senator shall read his speech.
I ask you this question because in yesterday’s Hansard the following report appears:
The ACTING DEPUTY PRESIDENTEarlier this evening Senator Branson drew my attention to standing order 406 relating to senators reading their speeches. My ruling at that stage was that courtesy should be extended to the Leader of the Opposition, particularly in the context of speeches in a debate on the Budget. 1 suggest to honourable senators that this is not to be taken as a method of conducting debate in the future.
– May we take it that your ruling extends also to the Leader of the Australian Democratic Labor Party?
The ACTING DEPUTY PRESIDENT- Yes, as the Leader of an acknowledged Party in the Parliament.
If there has been no arrangement between the various presiding officers to subvert this very clear standing order, on what basis is any such ruling given? Would you agree with me that it is a completely clear standing order and that courtesy is extended in relation to certain types of speeches, generally to a Minister because of the difficulties that the Ministers over there seem to have in presenting their speeches, and in relation to speeches on technical matters by senators? It is a question of courtesy. At no stage, I suggest, can you rule that the standing order is wrong. It has been provided for a very good reason. I am one who wants to see it remain. I do not want it to be obviously avoided nor subverted by rulings such as these.
– Am I in order in directing a comment to you, Mr President, on the question?
- Senator Willesee has given me advice. He has not really made any request. I call Senator Anderson.
– In view of what Senator Willesee said, perhaps in a jovial moment, I want only to bring out the point that Ministers read second reading speeches very often because they relate to Bills not necessarily coming under their own portfolios but relating to other departments. That is the basis, I understand, on which the reading of speeches came into being and the courtesy is extended also to leaders.
– If this standing order were enforced this would make it very difficult for many honourable senators to make their speeches in the way in which they wish to make them. It would be particularly difficult for new senators. I do not think that the provision is abused. Following the hard letter of the law one may object to almost any senator who uses a quotation in making a speech. I sometimes find great difficulty in deciding whether a senator is making a speech in his own words or is quoting something, because he frequently breaks in with his own words in the middle of a quotation. I suggest that honourable senators should not worry terribly about this. It is in the hands of the senator who is in the chair to say whether in his opinion the senator who is speaking is going too far in offending against the standing order. I ask honourable senators not to push the matter too hard because strict adherence to the provision would make proceedings extremely difficult.
– I direct a question to the Minister representing the Minister for National Development. As it is the stated intention of the Queensland Government to permit oil drilling at Repulse Bay, north Queensland, notwithstanding the fact that that Government acknowledges that there is a possibility of damage to the Great Barrier Reef, will the Minister give urgent and favourable consideration to establishing a commission or authority similar to the Snowy Mountains Authority with a charter sufficiently wide to cover all forms of conservation and protection for the Reef?
– An agreement was entered into by the Queensland Government and oil drilling companies in 1967. The Queensland Government is now honouring that agreement. In answer to a question yesterday I mentioned the Great Barrier Reef. The Commonwealth Government has nothing to do with the present arrangement because it was entered into, I think, before the oil legislation was introduced towards the end of 1967 or early in 1968. When one talks of the Great Barrier Reef and its great tourist potential, one talks of an area 1,200 miles long and many miles wide. In that area there are some parts that are not covered by the reef. Whilst this arrangement has been entered into and honoured by the Queensland Government and the oil drilling companies, I understand that no new arrangement has been entered into between the Queensland Government, the Commonwealth Government and oil drilling companies for drilling on the Great Barrier Reef itself. I think the honourable senator suggested the setting up of an organisation to look into this matter and advise the various governments. I will take that up with the Minister for National Development if the honourable senator will place that part of his question on the notice paper.
– Mr President, my question is directed to you. I preface it by reminding you that approximately a year ago you promised to investigate the possibility of incorporating the date on which a question was asked and the date on which the reply was given, when replies to questions upon notice were delivered in this chamber. Has any decision been taken on this matter?
– If my memory serves me correctly, there was some confusion as to what the honourable senator required. In regard to the date on which a question is put on the notice paper, I think we do meet his wishes; but I will look into the matter. I see no reason why it cannot be done.
– My question, which is directed to the Minister for Works, relates to an alleged fire risk in an Adelaide building which accommodates a large number of Commonwealth departments including the Commonwealth Parliament Offices. Is it a fact that, following the publicity given to this matter and the Minister’s reply to me, supervisors in some Commonwealth departments were allotted special responsibility for numerous female staff, equivalent to the duties of a fire warden? In view of the necessity to dispel any doubts about this matter, will the Minister ask the South Australian Fire Brigade to make a report on the fire protection system applying to the Commonwealth occupied sections of this building?
– I shall ascertain the details of the action taken after publicity was given to the matter referred to in the honourable senator’s question, and I shall certainly give favourable consideration to the suggestion that he makes in regard to the Fire Brigade.
– I direct a question to the Minister representing the PostmasterGeneral. Could the exercise of some foresight by the Postmaster-General’s Department have avoided Queensland’s present mix-up over telephone numbers? Some 6,000 subscribers’ numbers were changed as from last weekend but the distribution of new directories setting out the altered numbers started only a few hours before the changeover of telephone numbers took place, thus inconveniencing thousands of subscribers. Will the Minister indicate the reasons for such mismanagement?
– I am aware of the matter that has been raised by the honourable senator. It was also raised in this chamber yesterday by Senator Lawrie. I have asked for some information from the Postmaster-General. When I receive that I will inform honourable senators.
- Mr President, I ask you a question regarding the comment made by an Acting Deputy President last evening to the effect that the leader of an acknowledged political party in the Parliament is permitted to read his speech. What political parties in the Senate are acknowledged political parties? Does this acknowledgment give the leader of such a political party the right to read his speech? Does it give the leader of such a political party the right to speak for an hour when the proceedings are being broadcast?
– It is the usual practice, so far as the Senate is concerned, that when an honourable senator announces him self as leader of a party, I recognise him as such. That does not involve any other recognition. I extend to the leader of the party the courtesy that I would naturally extend to a leader. I give him preference in calls and things of that kind because he is the leader of a party. Beyond that I have no further association with or control over the matter. Regarding the reading of speeches, I have tried to make it clear this morning that we have been handling the situation reasonably well. Sometimes the rule is breached slightly. Sometimes the offence is perhaps a little more noticeable than at other times. However, the decision as to whether the relevant standing order is being breached still rests in the hands of the person occupying the chair at the time.
Reports on Items
– I present the following reports by the Tariff Board:
Dimethyl silicone fluids (Dumping and Subsidies Act).
Sorbitol aqueous solutions (Dumping and Subsidies Act).
These reports do not call for any legislative action.
Senator DAVIDSON (South Australia)I present a report from the Select Committee on Water Pollution. It reads:
On 7th May 1968, the Senate, by resolution, agreed that a committee be established to inquire into and report upon water pollution and quality of water for different uses in Australia, including (a) causes and effects, (b) methods of prevention and control, and (c) matters incidental thereto. On 27th August 1968, the membership of the Committee was determined.
The Committee first met on 8th October 1968 and has now held 56 meetings. To date, over 5,000 pages of evidence have been taken from 219 witnesses representing Commonwealth and State government departments and statutory authorities, local government authorities, a wide range of industry, community organisations, universities, primary producers, conservationists, and others. In addition, the Committee has received many hundreds of pages of submissions presented in writing which do not appear in the record of proceedings as sworn evidence.
On 27th November 1968, at the request of the Committee, the Senate resolved that the time for presentation of the report be extended until 31st October 1969. Because of the broad scope of the terms of reference and the self-generating nature of the inquiry, and the increasing public awareness and concern, together with the need to appraise recent developments overseas, the Committee finds that it is unable to complete its report before the impending dissolution of the House of Representatives on 29th September 1969. The Committee recommends, therefore, that a committee with the same terms of reference be constituted in the new Parliament with power to consider and make use of the records of the present Committee in order to conclude the inquiry and report on the work done during the present Parliament.
– I move:
That orders of the day Nos. 1 and 2 be deferred until consideration of orders of the day Nos. 3, 4, 5, 6 and 7.
I should point out that I understand that the honourable senator who is leading for the Opposition on orders of the day Nos. 1 and 2 will be ready to proceed after lunch. Therefore we may need to have a rearrangement after lunch to bring orders of the day Nos. 1 and 2 on again because we are anxious to dispose of them. For the time being we will carry on with order of the clay No. 3.
Question resolved in the affirmative.
Debate resumed from 19 August (vide page 1 26), on motion by Senator Scott:
That the Bill be now read a second time.
– The purpose of the Bill before the Senate is to give the Minister for National Development (Mr Fairbairn) power to authorise activity relating to surveying and mapping. It is quite obvious from the scope of this
Bill that such authority is required to be able to continue with the ever-expanding responsibilities involved in having accurate maps and surveys made of parts of this country. These maps and surveys previously were not available and now are found to be necessary for the various activities carried on by such people as developers of our mineral resources, developers of our land, geologists and many other people who need very detailed information of the topography of this country. One of the reasons why authority is needed by individual people or by groups of surveyors is that these people need to enter upon private property, which has a basic sanctity, so that, in the name of the Crown, they can carry on their surveys.
The Bill provides for persons to be authorised by the Minister. Section 5 of the Act provides for a delegation of authority by the M inister. The Minister or his delegate can appoint an authorised person, who then may enter on to properties and carry out surveys. A restriction is placed on the scope of an authorised person inasmuch as a person specified in t-he appointment is empowered to exercise the powers conferred by the Act only to the extent specified in the appointment and, in that event, the person so specified shall not exercise those powers except to the extent so specified. 1 think a lot of people fear, when such legislation comes before Parliament, that one interest may conflict with another, as happens in a dynamic society. For instance, the conservationists hold that they have a great responsibility to see that no other interests which would in any way deface parkland or some land that is their responsibility are superimposed on their interests. On the other hand, the interests of a large proportion of country people are best served by having detailed surveys made of many of these national parklands, if only for the purpose of acquiring knowledge about the surrounding areas. The scope of the authority that will be granted by this legislation covers such things as mapping surveys and maintaining, repairing, replacing, demolishing or removing Commonwealth survey marks. The work associated with the surveying and mapping of such a wide area of country as our continent is a continuing job and this legislation authorises this work to be carried out. The scope of the surveys anticipated covers such things as topographic and geodetic surveys, bathymetric and hydrographic surveys, geological and geophysical surveys, hydrological surveys and a survey of the earth’s natural resources including timber or other vegetation.
The legislation covers a very wide canvas and we can see the extent to which the more sophisticated techniques of studying our environment will be extended by these very capable people associated with mapping. Perhaps one of the contentious parts of the legislation is the provision relating to those cases where survey lines run through private property and it is necessary to trim or lop trees or bushes in order to have visual contact between one survey point and another. Much of the Bill is devoted to this essential and important aspect of surveying. It is covered by clause 7 which reads:
Subject to the next succeeding sub-section, an authorised person who, in pursuance of the last preceding section enters upon any land for the purpose of carrying out a mapping survey, may trim, lop or cut down any tree or bush growing on that land that, in his opinion, prevents or obstructs the carrying out of that survey, or may cause such a tree or bush to be trimmed, lopped or cut down.
We realise that it is important when a ground survey is being made by theodolite or other means that visual contact be had, and visual contact cannot be made unless a surveyor has authority to clear that part of the land which is in his line of sight. This Bill makes provision for granting that authority. Provision is also made to ensure that access is made available for such vehicles, equipment and other things as are considered necessary by the surveyor to carry out his job efficiently and with the least possible obstruction. Provision is also made to ensure that the rights of owners of property are protected when access to an area of land to be surveyed is required. The Bill provides for giving notice of the purpose for which entry is to be made. It is provided that notice of intention to trim, lop or cut down a tree or bush may be given orally or in writing. The owner or occupier must be given not less than 7 days notice before a tree or bush is trimmed, lopped or cut down.
The methods by which notice is to be given are also outlined in the Bill. Notice must be given personally or at the last known address of the person to whom notice is required to be given. Provision is also made for the protection of the person authorised to enter. It is provided that he shall not be hindered or obstructed in carrying out his duties. Provision is also made for penalties for the removal of Commonwealth survey marks. This is essential. Perhaps it may be said as an aside that this is one of the problems being experienced up in Bougainville at the present time where people are objecting on a different level to survey marks being established. They feel that the company concerned has no right to stake out its claim. It is a principle of British law, which has been inherited by Australia, that although the owner of the land has full rights over his area above the surface of the ground, the Crown has full authority over minerals and so on below the surface. In this Bill, it is provided that once the Commonwealth has established a survey mark anyone found damaging or removing it shall be liable to a penalty.
The legislation provides that persons authorised to enter upon property must respect that property and keep damage to an absolute minimum. They are also obliged to repair to the fullest extent possible any damage that is caused. Provision is made for compensation for any damage to property. The courts of the States as well as those of the Territories will be vested with Federal jurisdiction to deal with any matter under this legislation. The Opposition believes that this is an important piece of legislation which will permit mapping surveys to be carried out. Great credit is due to those people in the Department of National Development who are associated with the mapping surveys for the job that is being done. The Opposition has no objection to the speedy passage of the Bill.
– It is a great pity that measures of this nature are not debated more fully by the Parliament. However, the Parliament is mostly engaged in contests over philosophical and other issues and Bills which are not controversial do not tend to receive a great deal of attention. I rise purposely on this occasion because I feel that the Australian national mapping programme is something of which every Australian can be very proud. Most of what is happening has been outlined in the Bill. The mapping of the physical shape of the continent and its coastline, of its resources and water streams and of its forests are some of the immense tasks which have been undertaken by a dedicated group of scientists and departmental officers in recent years, J do not think that many of us are fully aware of just how well and quickly this work is being done.
Some quite notable jobs have been performed. The Australian atlas of resources, the map on the development of Australian soil, the general development of hydrographic work and the water resources maps that have been prepared are all of great importance to Australia. An immense continent has to be administered and large resources have to be managed by a limited number of people. It has been often said that Australia will have to develop some particularly high skills if it is to manage the problems that lie before it. What we are looking for in this country is what we have already - people of high quality with great initiative and ability. This has been demonstrated by the work of the Division of National Mapping and, as I said earlier, it is exemplified in this piece of legislation. The legislation deals at some length with what has been done and what it is intended to do. Tn fact, 1 think it can be said that in the prosaic world in which we live the national mapping programme is one of the great romances of Australia, lt is little known and little understood, but it is something that any one of us could tell any group - children or adults - about with considerable pride as Australians.
The Bill envisages simplification of access to various types of property. A highly accelerated 10 year survey is to be undertaken using the best technical equipment that can be acquired or designed. Simplification of access is necessary if the plan is to finish on time, lt will facilitate the access of ground parties for marker stations and the other devices that are necessary. I feel that this is an instance where the rights of a nation and the advantage to all of its citizens must of necessity be given preference to the individual requirements of a particular land owner. It seems to me that this point is well and adequately covered in the legislation. I cannot visualise any situation where anybody should feel that his rights are being set to one side. Accor dingly, I have considerable pleasure in supporting this Bill and in congratulating those people who have been involved in the national mapping programme in Australia over the years.
– I want to indicate briefly that the Australian Democratic Labor Party supports this measure. Like Senator Cotton, we appreciate the excellent work that has been done and is being done by the Division of National Mapping of the Department of National Development. The provisions of this Bill are imperative to the proper conduct of the division’s work. It is true, as was said in the second reading speech by the Minister for Customs and Excise (Senator Scott), who represents the Minister for National Development (Mr Fairbairn) in this chamber, that officers of the Department of National Development engaged in field work have not encountered a great deal of opposition, if any, when entering private property and carrying out their work. Anyone with any experience knows that that is usual in most cases, but it is only natural that we can expect at any time some perverse individual to raise objections.
There are some who will always take exception to any public officer entering his property to carry out work which the officer considers to be absolutely essential to a proper survey. I refer to photographic work, making survey marks and so on which are indispensable to a complete job. The Department and its officers must be legally armed to enter property and to carry out, with the minimum of destruction, any work that is believed to be necessary. The Bill provides also for the restoration, so far as practicable, of any property that is damaged. It provides also for compensation to reimburse a land owner for any damage to his property which it is not possible to restore to its former state, lt would be a great pity if this work were impeded or interrupted by an individual or individuals who want to stand in the way of this work being done. When one considers how extensive is the work of these officers one will recognise how important it is that they should be clothed with proper legal authority to do this work. We can expect that officers carrying out field work will have common sense and at all times will use the utmost discretion and courtesy in dealing with a land owner.
I recall asking the late Sir John Kemp, who was Co-ordinator-General of Public Works in Queensland and who formerly had been the Commissioner for Main Roads, why he took a road to Southport on the south coast in a certain circuitous course. He said: ‘I was required to do that because there was such a protest against the removal of a fig tree outside the Grand Hotel. I elected to avoid as much public upset as possible and so I took the road around the back way.’
– That was sound thinking.
– It was sound thinking in a sense, but I suggest that the economics associated with road construction did not justify that decision for the sake of a fig tree. We are all lovers of trees, but they have their place. If a tree is to stand in the way of a job being carried out economically, especially if it is the construction of a road which will provide a greater public service than an alternative route, I am all for taking down the tree to enable the construction of the road.
– ‘Woodman spare that tree, for when I was young it sheltered me.’
– That is quite all right in its place but some people get carried away and do not have a realistic approach. I can understand the attitude of some property owners. They suspect every Crown employee. They think that they come to damage their property or take something from them. If those property owners stopped to think of the great national good that these Crown employees are doing in making surveys, collecting material for maps and statistics that are so essential in the matters of geology, water, aeronautical studies and under so many headings, probably they would act in a more responsible manner than some of them do. The Bill is simple. It gives power and also provides for adequate compensation to land owners. I believe this is indispensible to a proper discharge of the duties in which these people are engaged.
– in reply - I wish to thank the Opposition for ite co-operation, and also the Leader of the Democratic Labor Party (Senator Gair). We are taking a great step to map the whole of Australia. It is proposed to put survey marks in the more populated areas about 20 miles apart, and in the less densely populated areas about 70 miles apart. This will allow them to tie in when photographs are taken for sections of Australia. Provision is made for heavy penalties to be imposed on people who remove survey marks. Where it can be proved that a person removed a survey mark he will have to pay the replacement cost. In certain circumstances the cost of replacement can amount to $1,000.
– That is a lot of money.
– Yes, it is. These survey marks belong to the people of Australia. In some instances they have been removed by contractors operating bulldozers who were aware of the positions of the survey marks. Many survey marks have been removed from the side of the Stuart Highway. When placed adjacent to roads the marks are set in concrete. They are placed in concrete blocks in which are set copper plaques embossed ‘Commonwealth Survey Mark’. People driving along the Stuart Highway have stopped, destroyed a concrete block and taken away a copper plaque.
– They are vandals.
– -It is complete vandalism and such people should be brought to book if it is possible to catch them. The maps are to be used for Commonwealth purposes in co-operation with the States and with the Army the members of which help us to compile them. We work in close harmony and we are able to produce much more quickly, without duplication of mapping, a complete set of maps of the whole of Australia. These will be of great benefit to many people, including members of the Army, people wishing to conduct mining surveys, and so on. I thank honourable senators for their co-operation. If any questions arise at the Committee stage of the debate I shall be pleased to endeavour to answer them.
Question resolved in the affirmative.
Bill read a second time.
– I wish to direct to the Minister a question in relation to the powers of an authorised person under clause 6 and the manner in which authorised persons will enter premises. Am 1 correct in believing that a person authorised by the Minister or a person who accompanies an authorised officer - there may be any number of people - is able without notification to enter any property and commence activities? Is he in fact able to take on to the land vehicles, equipment and other things he considers necessary and there do such things as he believes to be required? I may be incorrect in imagining that there is no need for an authorised officer to notify the owner of the property he wishes to enter. As I understand it, he must notify a property owner if he intends to engage in trimming trees or other such work on the property. I ask the Minister to make that position clear.
I have raised this query because I well recall officers of a State government department entering a property with which 1 am connected. They used a string of five vehicles including quite large 4-wheel drive vehicles. Without notifying the owners of the property they took their vehicles straight through a standing crop although they could without much difficulty have driven on the other side of a fence and thus avoided damage. Litigation or other action in respect of damages may be most embarrassing to an owner. T believe that this legislation should contain a provision that a property owner is to be notified of an intention to enter his property.
– I wish to direct a few remarks to clause 7 of the Bill following on Senator Webster’s remarks about lack of notification on entering a property. I voice my protest at the drawing up of legislation which provides every convenience for government departments to do their essential work but lacks consideration for an individual who may be affected. After authorised officers have entered a property, under clause 7 there is power to trim, lop or cut down any tree or bush growing on that land. As Senator Gair said, there are some peculiar individuals who object to any government official. We must have power to act in those situations. Nevertheless, some quite honest, thinking people resent intrusion upon their land and the cutting down of a tree which may have sentimental attachments or a use or purpose where it stands. It may be true that the owner is paid compensation, but how is compensation to be fixed for an irreplaceable 150-year-old tree?
I agree that there should be no interference if the mapping or surveying is necessary but I do object to the clause providing that this is a matter for the opinion of the authorised officer. Clause 7 (3.) provides that 7 days notice must be given before the tree or bush is trimmed, lopped or cut down. I presume that the 7 days notice has been provided to give the owner an opportunity to obtain some redress if he does not think it is necessary for a tree to be touched. I imagine that he could apply to the court to restrain the officer who may be acting outside the powers granted by the Act.
The officer concerned has the right to say whether he thinks it necessary to cut down a tree. In fact it may nol be necessary to cut it down. Possibly the tree could be bypassed in some way. However, irrespective of whether it is necessary to cut down a tree, on any application to the court to restrain the officer the court has to decide only whether the officer had power under the Act to order the cutting down or lopping of the tree if in the opinion of the officer it was necessary to do so. My objection is to the words used in clause 7 (1 .). The authorised person -
If we approve legislation which gives an authorised officer the right to cut down a tree if, in his opinion, it is necessary to do so for the purposes of a survey, the owner of the tree then has to prove that the order to cut down the tree was an unjust order and that it was not necessary to cut down the tree for the survey to be carried out. I think further consideration should be given to the power that is granted to the authorised officer.
Whilst 1 again praise the concept of mapping and surveying in Australia and believe that there should be legislation to stop those who would oppose it when it is essential, I think that we must consider the views of the owner as against the views of the authorised officer. There should be some method of ascertaining whether it is necessary to cut down a particular tree for the purposes of a survey. Land owners take great pride in the bushes and trees on their properties, either for their beauty, their age or for the purpose they fulfil as wind breaks.
– I direct the attention of Senator Webster to clause 5 (1.) of the Bill which provides:
The Minister, or a delegate of the Minister, may, by writing under his hand, appoint a person to be an authorised person for the purposes of this Act.
Sub-clause 3 defines ‘delegate of the Minister’ as a person who is authorised by the Minister, by instrument in writing, to make appointments under this section. The Minister would delegate his authority to the head of the Division of National Mapping who in turn would authorise an officer to enter certain property. I might mention here that normal courtesies are to be extended to the occupiers of every property, which parties have occasion to enter. On very large holdings where the work may be situated quite some miles from the station it is necessary that the occupier be advised of what is taking place.
On the very rare occasions when an occupier questions the right to enter it is found that further explanation, forbearance and tact can smooth out problems. However there are certain occasions when the owner of the property says: ‘You cannot come in to trim, lop or cut down any tree or bush’. In those circumstances the Commonwealth must have the authority to do so. This is why the Bill has been introduced. It is designed to give authority to a person to enter property so that this work can be carried out.
Senator Cavanagh objects to clause 7 which provides that an authorised person may enter upon private land for the purpose of lopping or trimming trees. I remind him of what Senator Gair said of an occasion when he was in politics in Queensland. For convenience sake but at some additional cost to revenue Senator Gair decided that a road should go around a fig tree instead of the fig tree being removed. That was a political judgment although it was a cost on the taxpayers of Queensland. I point out to Senator Cavanagh that when an authorised person enters upon land to erect a survey mark it is necessary for that mark to be distinguishable by line sight. In other words, it has to be straight and able to be observed from a distance. It would be of little use if a survey mark could not be observed from a distance. Therefore, it must be placed in a position where it can be seen from a distance and for that purpose trees must be lopped or trimmed.
The honourable senator referred to the procedure covered by clause 7. I direct his attention to clauses 10 and 11. Clause 10 provides that an officer who enters upon property must exercise care to avoid damage to property, and clause 1 1 provides that if damage is caused by reason of any act of a person exercising the power conferred by this Act, the Commonwealth is liable to pay compensation as determined by agreement between the person concerned and the Minister or, in the absence of agreement, by action of the person concerned against the Commonwealth in a court of competent jurisdiction. The clause also sets out the courts in which the person concerned may take action to obtain compensation if he thinks that he requires compensation for damage.
– I have lived and worked with maps all my life, surveying this and that. I suppose I am right in suggesting that all State governments have mapping and surveying departments. Is the proposal contained in this Bill to supersede the State laws and mapping arrangements? For example, every inch of country within 50 miles of Sydney has been surveyed. We already know the position. Is this Bill directed specially towards outlying country areas or the hinterland? Does the Commonwealth override the authority in New South Wales, for example, in relation to these matters? I have seen thousands of maps of the coal mining areas of New South Wales. What is to be done with those maps which have been prepared by State departments? I take it that the Commonwealth has conferred with the States on these matters, that the States have agreed to their rights being superseded where necessary and that the machinery that they have had over the years now becomes redundant. Normally it is a very tedious job for people who are interested in purchasing property under various titles. Will not this legislation add to the complications for them and to the delays? A Federal instrument will now be involved. If I want to divide a sheep station I shall have to line it up not only on State lines but also on Federal lines. My principal question is whether the Commonwealth has consulted with the States in relation to these matters or whether we are opening up a great field for litigation.
– 1 shall answer the last question first. We have consulted the States and we have their complete co-operalion in this national mapping programme. In fact, in some cases they are carrying out some of the work for us. The honourable senator asked why we have to map places within, say, 50 miles of Sydney which have already been mapped by the State Government. No doubt this question applies to all cities in the Commonwealth under State jurisdiction. The States have carried out these surveys on a scale of 4 inches to the mile, which is a much larger scale than we use. The scale that we are to use in aerial mapping is 1 . 6 miles to the inch in the more densely populated areas and 4 miles to the inch in the outback or central Australian areas. We have to remap these areas to bring the maps up to date so that they will depict new roads, watercourses and buildings.
– 1 wish to take up two points with the Minister. He may be aware that he did not answer my question previously. Perhaps I did not put it correctly to him. I asked him whether there was any provision in the Bill which made it necessary for a Commonwealth authorised officer to give notice either orally or by any other means to a property owner that he was entering a property. The Minister answered some other questions.
– The answer to that is no.
– It would be done administratively. Advice would be sent to him.
– Not necessarily.
– I express my view that it should be necessary and I believe that such a provision should be included in the Bill. Perhaps the Committee may decide otherwise. From a rural point of view 1 believe that it is reasonably necessary for any authority entering a person’s property at least to advise the property owner, as undoubtedly many would do, that the property was being entered for a certain purpose. Undoubtedly the officer would not be interfered with. Those persons who live in the country have seen some of these provisions administered by persons who do not take into consideration the thoughts of the property owner. There is often a different view taken by those who live in a rural area and those who live in the city on what access to property should be permitted. I suggest that if a Commonwealth authority entered the property of a city dweller to place plaques or do any other act in relation to the block of land the police would probably be called in and there would be quite some abuse unless the property owner were notified. I have had experience in this matter and on a number of occasions I have encountered quite officious gentlemen. Under the legislation a delegation of authority will be available.It may not be possible for the original authority to control the actions of the person to whom authority is delegated. AsI said previously, the person concerned may be an authorised person or a person who accompanies the authorised person who is authorised by that authorised person. I believe that written into the Bill should he an obligation on the authorised person to give oral notice to the property owner that he intends entering the property for a particular purpose.
Clause 7 relates to particular acts such as the trimming of trees. I ask the Minister to make clear to me what is required under paragraph (a) of sub-clause (2.) which provides:
An authorized person shall not, in pursuance of the last preceding sub-section, trim, lop or cut down any tree or bush, or cause any tree or bush to betrimmed, lopped or cut down, unless - (a) notice of intention to trim, lop or cut down the tree or bush has been given to the owner or occupier of the land on which the tree or bush is growing . . .
The Committee would agree with that provision. Perhaps there is a mistaken view that under this legislation it would be necessary to give that notice in writing. As I read the provision, it would not be necessary to do it in writing. I ask the Minister to make that clear. Sub-clause (4.) provides for oral notice in this connection. This is the first instance in which oral notice is mentioned.
– No, it is mentioned in sub-clause (3.).
– Sub-clause (3.) clears up the point.
– If the Committee is quite clear on that matter I will be assured, lt appeared to me that it would be necessary that written notice be given if certain action were to take place. My line of thinking was that there may be an absentee owner and the property may be in charge of a manager. It would be possible under this paragraph for oral notice to be given that the action was to take place, the oral notice having been given perhaps to bypass the necessity to give to a corporation or any other owner the necessary notification that those in higher authority may wish to have in order to make some decision in the matter. I take the point that sub-clause (4.) provides that oral notice in this connection shall be given personally. I should like the Minister to indicate the general ambit of the notification that is to be given. Must notification be given in writing if damage or removal of trees is to take place? If it is oral, from whom is the oral approval to be sought and by what method will it be given?
– When I answered Senator Webster earlier I said no to the points he raised in connection with clause 6 under which persons can enter land without authority. This has always been the case. Officers of the mapping section very frequently have to go into properties to lake a gravity reading or a height measurement or both. They do not necessarily leave a mark on the land. It is not necessary to obtain permission to do this.
– lt is a question not of getting permission but of going on without giving notice.
– That is what I am answering. In relation to the other part of the question, if an authorised person deems it necessary to trim or lop trees on a private person’s property under this legislation he can get oral permission. In other words, he goes to the person at his house and says: It is proposed to put a survey mark here. It will be necessary, so that this survey mark may be observed, to lop or trim certain trees. Have you any objection?’ The leaseholder says: ‘No’. So the officer goes ahead with his programme.
Sitting suspended from 12.45 to 2.15 p.m.
– Before lunch I was replying to queries raised by Senator Webster regarding oral permission to enter land, the circumstances under which oral permits would be granted and what would be done pursuant to written notification, where that was necessary. The meaning of the Bill is quite clear. If an authorised person wishes to enter private land for the purpose of lopping, trimming or felling trees, he must first obtain the permission of the land owner, holder or lessee. If he goes along to the land owner and the land owner says to him: ‘You can go ahead. As far as 1 am concerned, there will be no problems regarding your proposition lo trim, lop or fell trees’, he naturally goes ahead.
But if the land owner said: ‘I am not happy with this proposition. I do not believe that you should lop. trim or fell these trees’, the authorised person would then say: ‘I will now give you 7 days notice’. The officer, for his own protection, although not obliged to do so, would give the land owner the notice in writing. Then he would go in and lop, trim or fell the trees. If the land owner believed that there was a value in the trees that were lopped, trimmed or felled, under clause 1 1 he would have the right to appeal to a court for damages from the Commonwealth. If a person enters land for the purpose of lopping, trimming or felling trees and uses bulldozers, earth excavation equipment and so on to do so, he must abide by clause 10 of the Bill, which reads:
A person shall, in exercising any power conferred on him by section 6 or 7 of this Act, avoid, so far as is practicable, causing damage to any property and, if any damage is caused to properly by him in the exercise of any such “(tower, shall, so far as is practicable, repair thai damage.
After any damage has been repaired, if the land owner is still not satisfied, under clause 11 he can claim damages from the Commonwealth in any of the courts specified in that clause.
Senator Webster has asked why it is not necessary for persons to give notice when they are going on to land for purposes other than the trimming, lopping or felling of trees. I advise him that the work that is being carried out is carried out for various purposes of the Commonwealth. It includes the work of members of the defence forces who under the Defence Act have certain protection and also the work of officers of the Bureau of Mineral Resources who quite frequently carry out geological and geophysical surveys and use these maps as a guide. They carry out their surveys with the aid of modern methods including the use of helicopters. When they are working on station properties in the centre of Australia or in farming areas they may just drop down in a particular area, carry out a geophysical or geological survey, or both, get back into the helicopter and leave without doing any damage or making any marks at all on the land. If the Senate said that it was necessary in such instances to obtain approval to land a helicopter on a lease of 1,000 square miles in the Northern Territory or a farm of 10,000 or 12,000 acres in order to obtain geological or geophysical information, knowing that it would not cause any damage, that is carrying the matter too far.
It is interesing to note that these maps will be on a scale of 1.6 miles to 1 inch in the more densely populated areas. Many honourable senators will recall that the Minister for National Development (Mr Fairbairn) arranged a special mapping exhibition in Parliament House last year, firstly, to signify that his Department, with assistance from the Army and the States, had completed the first phase of the mapping of Australia, namely, a complete coverage of the continent with uncontoured maps on a scale of 1:250,000 or approximately 4 miles to 1 inch; and secondly, to indicate that the immediately succeeding task would be the more intensified mapping on a scale of 1:100,000 or approximately 1.6 miles to 1 inch and with contours over the whole of Australia at 20-metre intervals.
For the information of the honourable senators who were members of the Senate Select Committee on the Metric System of
Weights and Measures, I mention that the Division of National Mapping is now quite sure that the best method of obtaining these measurements and so on is by using the metric system. Evidently the Division is quite confident that at some time in the near future the Government will be giving consideration to the adoption of the metric system.
– I rise again because the Minister’s comments in replying to the question I raised, in which he referred to a similarity with the case of the fig tree mentioned by Senator Gair, suggested to me that the Minister did not fully grasp what I was trying to convey to him. I acknowledge the necessity to lop or uproot trees where it is essential to the making of a survey. I also acknowledge that clauses 1 0 and 1 1 make provisions for a landlord to claim adequate compensation. We all agree that it is essential, for the purposes of mapping and surveying, that nothing should stand in the way of those carrying out these operations.
The point I make is: What trees should we allow to be lopped and what trees should we allow to bc uprooted? Surely it is obvious that the trees we permit to be uprooted are those necessary for the purpose of carrying out the mapping or surveying. After deciding what trees have to be removed to carry out the work required, it is proposed that we give 7 days notice in order to permit any person concerned time to apply to a court for an injunction against the Department to prevent the lopping of particular trees. They may have some value to the owner. This would prevent lopping or removal of trees other than in compliance with the legislation. But as the Bill stands, if the owner seeks an injunction he is faced with the argument that in the opinion of the authorised person the removal or lopping is necessary. The point is that the question is not whether it is necessary in fact.
– The honourable senator is saying that you cannot challenge the opinion. There is no way of challenging the opinion.
– I am opposing the words ‘in his opinion’. There should be rights given to uproot the tree or lop the tree or bush. I am seriously handicapped in my argument for the preservation of native trees and shrubs because Senator Mulvihill is not present. Trees and shrubs have a value. Another point to be considered is that the land and property concerned could be associated with some sacred rites of an Aboriginal tribe. This Bill gives the landowner no opportunity to argue whether it is necessary to lop the particular tree to enable people to carry out their work in accordance with this legislation. If the owner goes to court then the authorised person merely has to say: ‘I am of the opinion that this is necessary’ and the court is powerless to act in the interest of the landowner. I refer the Committee to clause 7 (1.) which states:
Subject to the next succeeding sub-section, an authorised person who, in pursuance of the last preceeding section enters upon any land for the purpose of carrying out a mapping survey, may trim, lop or cut down any tree or bush growing on that land that, in his opinion, prevents or obstructs the carrying out of that survey. . . .
I ask why it is necessary to have the words in his opinion’ included. This restricts the right of the owner of the tree or bush concerned. If those words were eliminated it would provide an opportunity to argue that the cutting or lopping was not necessary.
I raise this point because I believe more care should be taken when drafting legislation to preserve the rights of the individual rather than to ensure that all rights are on the side of government authorised people. I cannot see the value of insisting upon 7 days notice being given, as is provided in clause 7 (3.) if it is not to permit the owner the opportunity to take some action if he thinks he has been wronged. While those words ‘in his opinion’ are in section 7(1.) it seems to me that the owner has no redress. That is the point I am trying to make.
– I am not entirely happy about clause 6. I recognise that clauses 10 and 1 1 provide for compensation but it seems to me that legislation which permits an authorised person to enter land without any notice being given is not good in principle and also does not provide adequate protection for the Commonwealth. Clause 6 (2.) of the Bill states:
Where an authorised person is empowered under the last preceding sub-section to enter upon any land for any purpose, he may, for or in connection with carrying out that purpose -
take upon the land such vehicles, equipment and other things as he considers necessary; and . . . 1 envisage occasions, particularly on farming land where there are lambing ewes, cows or other animals, when persons entering that land with equipment and vehicles could cause a great deal of loss. This has happened many times in the past. If notice is given to the landowner then he has an opportunity to move stock or to protect them. This not only protects him against loss for which he never can be fully compensated, but also protects the Commonwealth against claims which may not be necessary if notice is given. Not only is it not a good principle to enter land without notice; I believe also that this does not provide adequate protection either for the landholder or for the Commonwealth.
I do nol propose to make an issue of this point but I believe it would be very wise to ensure that we have in our legislation provisions requiring notice to be given. We know that precedents are set by legislation such as this. The danger may be even greater in respect of other legislation if similar provisions are included. 1 urge that we provide always for notice to be given. 1 am not happy about this point and I want to make my opinion quite clear.
– I recognise the problem which besets the draftsman of this legislation in that the modern methods used by the Division of National Mapping include all types of equipment. The draftsman has to overcome this problem. One can well imagine the problem facing the people doing the mapping in the outback of Australia. A helicopter and crew may be working in a paddock which is a couple of square miles in area. It would be pretty near an impossible task if they had to notify the owner. However, all cases are not like that. I would be unhappy to be a member of this Senate if it is content to hand over to a Commonwealth employee a right such as this and for him. upon being given the necessary authorisation, to be able to enter any person’s property, without giving notification, and to take upon the land such vehicles, equipment and other things as he considered necessary and then to do such things as he considered necessary.
I think we have to consider an extreme example, such as the great areas of the Australian outback which have to be mapped, and then consider also the reasonable sized properties and farmlands such as there are, for instance, in my own State. I have seen this problem arise time and time again. Various authorities believe that they have the right to enter a person’s property and to do such things as they think fit. Indeed, we know that not always, perhaps, does the power of discretion lie with the person at the head of the line who apparently has been given the authority. I have experienced instances myself where those in authority believe that they have the right to cut your fence line, enter your property, and go from one paddock to another without paying regard to what may happen to the stock therein or as io what may happen to the property itself.
I will mention an incident of which I have personal knowledge. Army personnel who had the requisite authority to enter, went through standing crops without considering the result. I might add that the people concerned could have taken another route within the property without damage to any asset. I see that these things can happen in my own State. People from the metropolitan areas at times think they have a perfect right to enter any farmer’s property. There are persons in the metropolitan area who feel that they have the right to walk over any person’s property - to walk in amongst lambs, shoot stock, cut fences - and to do that which they wish. There is a reaction in rural areas against such happenings. I am not keen to bc a member of a Senate which lightly hands such authority as described in this Bill to some authorised person to enter any private citizen’s property without insisting that notification be given the owner. This is an erosion of rights.
– Is this not like the Bougainville case?
– My mind is on a variety of things, but 1 do not think the Bougainville case applies in this instance. 1 am trying to present a reasoned attitude, an attitude which exists in the community. At the same time I recognise the problems of the Division of National Mapping. I do not wish to see an amendment of this legislation but I would like the Minister to give me some assurance on this point. The Attorney-General’s Department has given me the names of Acts which provide a general right of entry without prior notice. Our forebears laid down this right. I con cede that in some instances it is necessary. Section 60 of the Distillation Act 1901- 1956 empowers a person to enter. Section 61 empowers a person to knock down a door to allow entry. We can see the reason for that; perhaps the law is being contravened. Section 69 of the Defence Act 1903- 1964 gives a general right to enter. I concede that that right should be given because of national interest. Section 16 of the Lands Acquisition Act 1955-1966 gives a person authorised by the Minister such a power. One of the most important of the Acts which contain such a provision is the Post and Telegraph Act 1901-1966. I do not know why such a provision was ever inserted in that Act. Section 84 gives a right to any person, acting under authority, to enter a property and to remove gravel, stone and a variety of other things, without obtaining permission. This is wrong in principle.
– If I were to enter the honourable senator’s property in the metropolitan area and to remove a few stones from the pleasant nature strip, there would be no end of trouble. This provision reacts against persons in rural areas. I ask the Minister to give me the assurance I seek. If the Minister will, as an administrative act, assure the Senate that as far as practicable an owner will be notified in every instance that a person, for the purposes of this Act, is about to enter his property I will be satisfied. An instruction to this effect should be given at the time the authorisation is handed down from the Minister or from further down the line. I do not think that is an unreasonable proposition.
– Does the honourable senator mean that an owner should be notified in every instance, including when helicopters are to land on a property in the middle of Australia?
– I have used the words ‘as far as practicable’. I think one could use one’s discretion. My view would be that in a case such as that quoted by the Minister notification would not be necessary. I would think it would be a travesty of justice to the individual if a helicopter were to land in the middle of a flock of a thousand sheep which included lambing ewes. I have seen similar instances where vehicles have been driven through a paddock, causing stock to go in every direction, and the person responsible has not realised that he was causing any problem. What I have suggested is quite clear. The person obtaining authorisation should have conveyed to him that wherever practicable he has an obligation to notify the owner of the premises of proposed entry on to those premises. That would be clear enough, if the Minister would give that assurance, that would be acceptable to me.
– Honourable senators have raised some queries which they believe are very important - and no doubt they are. This mapping programme has been in operation since 1966. lt is a 10-year programme and is expected to finish in 1976. On several occasions officers of the mapping section of the Department of National Development have been refused access to land. On one or two of those occasions they have been able to obtain the co-operation of the States and use rights conferred under State Acts to enter the land. Senator Webster mentioned having seen Commonwealth employees, not necessarily officers of the mapping section of the Department of National Development, enter land where ewes were grazing and lambing. 1 am informed by one of the officers of the Department that on occasions a person representing the mapping section has gone to a farmer’s property and said that he wanted to look at a survey mark there, or for some purpose in connection with mapping, and that he proposed to land in a certain paddock. The farmer has said: ‘You cannot do that; my ewes are lambing’, and the departmental officer has replied: ‘Very well. We will defer it until you are ready’. The Department gives the utmost cooperation. Senator Sim’s objection is that the Bill gives too much power to the Commonwealth without looking after the interests of private people. I think we need an Act of this type to give the necessary authority for a delegated person to carry out certain functions. Under section 5 of the Act, delegate of the Minister means: . . a person who is authorised by the Minister, by instrument in writing, to make appointments under this section.
That person must be held responsible for the type of person to whom he delegates authority. This delegated authority would not be given lightly; it would be given to responsible people.
– The delegation goes much further than that.
– I know what a person can do once he has authority. I am talking about the type of person who is granted these powers by a delegate of the .Minister. The Minister may, by instrument in writing, make appointments. Section 6 of the Act states:
An authorised person may enter upon any land for the purpose of -
carrying out a mapping survey; or
maintaining, repairing, replacing, demolishing or removing a Commonwealth survey mark.
– The important subsection is the one that the Minister is about to read now.
– Yes. It reads:
Where an authorised person is empowered under the last preceding sub-section to enter upon any land for any purpose, he may, for or in connexion wilh carrying out that purpose - (:>) lake upon the land such vehicles, equipment and other things as he considers necessary; and
there do such things as he considers necessary.
A person accompanying an authorised person is, when directed or authorised by the authorised person to do any act or thing that the authorised person is empowered to do under this section, himself authorised to do that act or thing.
An authorised person could go on land- as people do now - to remove a survey mark. His tractor and/or bulldozer could leave marks. The man who owns the land has the means by which he can obtain compensation from the Commonwealth if the person with the delegated authority has not, under section 10 of the Act, repaired the damage caused in doing the work specified in sections 6 or 7.
– Does the Minister intend to do anything about my request for an administrative exercise?
– I assure the honourable senator that where an inconvenience could be caused to a farmer, because of ewes lambing or some other circumstance, officers from the Department would not enter that property except by agreement with the landholder. For the honourable senator’s information, wherever possible the Department notifies the landholder before its officers enter his property.
– I wish to direct one question to the Minister. One would gather from listening to honourable senators on the Government side that this Bill deals only with the moving of fences, and the removal or smashing down of trees and so on in country areas. It would seem that it relates only to the trees owned by farmers. No-one has said anything about the trees in the metropolitan areas. Will this Bill apply to the metropolitan areas or not? I mention the position in Woollahra where 30,000 or more people are very concerned at the removal of trees on Jersey Road, one of the most famous streets of Sydney. They are having protest meetings, and Ministers have visited the area, but it is still proposed to remove the trees.
– Are they to be removed for survey purposes?
– The area has been surveyed a hundred times. As I have said, all reference so far has been to farmers, to people in the hinterland and so on. Not a word has been said about the people in, for example, the Woollahra and Paddington areas who are being turned out by bulldozers.
Is it intended that this Bill shall not apply to metropolitan areas? I know it is to have Australia-wide application, but nobody in their right senses would assume that it would have application to the situation in Woollahra. I am wondering why the Bill has not been drafted in such a way as to describe the areas in which it will operate. I note that it is claimed that it will have defence value in that under it the Government proposes to map certain internal areas of Australia that have not yet been mapped. But it would seem that it is not proposed to do anything about the metropolitan areas of the States. Senator Webster spoke of certain people who, in his opinion, needed protection. Was he referring to people in areas, say, 30 miles out from the city? Where does this Bill start to operate?
– My Party has a national outlook. It is concerned with everyone.
– It could be that, for practical reasons, the Commonwealth legislation should supersede that of the State when it comes to surveying the internal parts of Australia, but it would seem to me that it is not proposed to do anything about protecting people in the metropolitan areas who are possibly more entitled to reimbursement for inconvenience and for despoliation of their property than are the people in any other parts of the country. No doubt it can be argued that metropolitan areas are the responsibility of the States, but this Bill makes no mention of separation of responsibilities. I think that a great deal of litigation could arise because of it. Can the Minister clear up some of these matters?
– The mapping that is proposed to be done is the mapping of the whole of Australia, including the cities. I point out to the honourable senator that the National Mapping Council is comprised of representatives of both Commonwealth and State bodies and that both the Commonwealth and the State authorities work in very close cooperation. If any damage is done by the Division of National Mapping to a building or a tree in the metropolitan area then the owners of that building or tree have just as much protection under this legislation as do the people in the outside areas. Senator Cavanagh asked about clause 7.
– I asked why the words ‘in his opinion’ are included.
– The authorised person is a responsible officer. He tells the owner of the property that it will be necessary to lop, trim or cut down certain trees because they are interfering with the making of observations between survey marks. Somebody has to make the decision as to whether something is obscuring the view. Of necessity, this must be the delegated authority. He tells the land owner that the trees must be trimmed, lopped, cut down or removed and I presume the land owner can then say: T want 7 days notice’. I believe this would give the land owner the right to take whatever legal action is provided for under civil law.
– I do not intend to claim the attention of the Senate for very long. I merely want to observe nothing more than that in the time that I have spent in the Senate 1 have listened to a long train of Ministers carrying their portfolios on their backs approaching the table and putting up some specious story that: ‘We want this little power and it will never be abused.’ This happens in connection with Bill after Bill, yet every Minister treats it as a new factor that has come to the Parliament for the first time.
The reality of the position is that the citizen today, both in State and Federal jurisdictions is oppressed by a whole horde of tyrannies embodied in powers given with legislative sanction or by regulation by which certain persons may invade the privacy of the home, all in the verbal parenthesis of ‘in his opinion’. If it is an officer’s opinion that there are some illegal eggs in a house, he can go in. If it is his opinion that there is something else there, he can go in. This is merely an extension that comes up in the context of a mapping survey. The arguments the Minister advances are the same arguments that have been advanced by a tribe of Ministers in this place over the last 20 years. Each Minister claims it is a power which will not be abused. Yet every member of Parliament, whether in the State or the Commonwealth sphere, is the recipient of endless complaints from people against the small tyrannies that are exercised under legislative sanction which is given so lightly in this place.
– I would very earnestly appeal to the Minister to reconsider some of the provisions of this Bill. I would ask him, if he would, to enable that opportunity to be given by reporting progress. In addition to those matters which have been raised, I think there are other matters in this measure which ought to cause concern. I generally share the views which have been expressed by Senator Sim about the undesirability of enabling persons authorised by the Government to enter upon a private citizen’s land without notice. From what the Minister has said, I am sure that he, likewise, shares that general sentiment. He said by way of assurance to Senator Webster that wherever possible notice will be given.
If ‘wherever possible’ is an expression which is capable of meaning to those who are charged with the administration of the Act, then I would have thought, although there is some ambiguity and some loopholes are provided by the words, that it would be far better if those words were put into the legislation. Then in those cases in which notice can be given notice will be required to be given. If a person is aggrieved that he has not been told, then he will have such remedies as the Act and common law will avail him.
Again in relation to the particular aspect of entry upon land, sub-clause 2 of clause 6 permits an authorised person to enter upon land with such vehicles, equipment and other things as he considers necessary. The important words there are ‘as he considers necessary’. He is then permitted ‘there to do such things’ - and again we have the important words - ‘as he considers necessary’. If he has somebody accompanying him he can allow that person, who may be one of the merest juniors with him, to enter that property and to do anything he himself is entitled to do. There is no criterion set in the Bill as to whether or not what is done must be necessary for the carrying out of the objective. It is a matter of whether the officer concerned thinks it is necessary and not whether it is necessary under the legislation. These are matters to which reference has already been made. 1 think it is important that 1 should refer to the aspect raised by Senator Cavanagh. Let us assume that a person is about to have his shade trees, ornamental trees or some other distinctive Australian flora that he has on his property lopped, cut down or removed and he is given notice of it. The legislation requires that he be given 7 days notice. If he objects he has no redress at all. There is no doubt that some people will object. If a person says to the officer who is about to lop or cut down his tree: ‘I do not want you to do that’, the officer can simply reply: ‘If that is your attitude, I will go to the courts and obtain a warrant entitling me to do so’. When the officer goes to get the warrant he is not obliged to give any notice that he is doing so to the land owner. The officer can go, as is the normal practice in relation to the obtaining of warrants, ex parte to the court and say: ‘I want to go on to this land to chop down a tree. Here is the legislation that gives me power to do so. I have given the required notice’ and he will get the warrant. That is all he has to do to get the warrant and the land owner is not entitled to resist him in any way.
– What about the compensation provisions?
– With all respect to the Minister, of what use are “the compensation provisions? All they mean is that someone can go onto a property, damage it indiscriminately and adopt the attitude that it does not matter what he does as the Commonwealth will pay compensation. That is no satisfaction to a land owner. Compensation should be only on the basis that there was no other way of giving redress. It should be a matter of: ‘Regrettably, we have to do it, but you will receive your compensation’. This legislation permits authority to be exercised in a way which gives no protection to the person upon whose property the damage is occurring whilst it is occurring. I point out to the Minister for Customs and Excise (Senator Scott), who is in charge of the Bill, that there are a number of features of the legislation which should be looked at again and I ask him to permit the opportunity to be taken to do this. It is quite clear from the second reading speech of the Minister that one of the purposes of this measure is to enable officers engaged in mapping exercises to enter upon properties because difficulties have arisen in the past. It is also quite clear that one of the purposes of the measure is to enable operations to be carried out on land in respect of which there were some problems previously. If the purpose of the legislation is to give power to such a wide extent it may be that the land owners would be better served if there were no legislation. I am quite sure that by the ordinary procedures of negotiation the survey objectives would be achieved. I ask the Minister to indicate whether further opportunity will be given to reconsider the matter.
– Honourable senators should be very pleased that a measure of this nature has received so much of the Senate’s attention at the committee stage.
Senator Cavanagh referred to the power of an officer to lop or cut down a tree or bush that is growing on a property. The question of an officer’s opinion is a matter that has been often discussed in the Senate. Senator Greenwood very thoughtfully and impressively referred to clause 6 sub-clause (2.). He directed our attention to the fact that under sub-clause (2.) (b) an authorised person is empowered to enter upon any land and there do such things as he considers necessary. I submit that his concern on this aspect will be modified if he takes into account sub-clause (2.), which states:
Where an authorised person is empowered under the last preceding sub-section to enter upon any land for any purpose, he may, for or in connection wilh carrying out that purpose -
The legislation provides that he is only empowered to enter upon that land for or in connection with the preparation of a map for Commonwealth purposes, which would include defence purposes and developmental purposes. I emphasise that under clause 6 sub-clause (2.) he may enter upon the land only for and in connection with the carrying out of the purpose of mapping and that he may take vehicles upon the land and do things that he considers necessary only for that purpose.
– That has no application to clause 7.
– I think it has. Clause 7 places certain limitations upon him. There is a special limitation on the cutting down or lopping of trees. Where the officer wishes to do these things he has to give notice. I am of the opinion that there is a strict limitation upon any authority he is given under the legislation. The officer must show objectively - not merely that it is necessary in his opinion but, objectively - that what he proposes to do is necessary for or is in connection with the carrying out of the purpose of mapping. Some people may say that that is not a sufficient safeguard. I submit that in clause 10 there is a complete and absolute limitation upon the powers under clauses 6 or 7. Clause 10 states:
A person shall, in exercising any power conferred on him by section 6 or 7 of this Act, avoid, so far as is practicable, causing damage to any property-
That is a specific statutory direction that the powers under clauses 6 and 7 shall extend only to the causing of unavoidable damage.
– But that does not give rise to an injunction to stop work being done at the time that it is being done; it only affords the land owner a remedy in damages afterwards.
– With great deference to the honourable senator, I would suggest that a little reconsideration will show otherwise. I suggest that if, after the owner or occupier has received the necessary notice under clause 7, he can demonstrate to the court that it would be practicable to avoid cutting down the tree the court would not enjoin the cutting down of the tree.
– I do not think so.
– May I again offer an opinion for discussion? I hope that it will be intelligently discussed. The Senate’s determination last night was proper but the manner in which the subject was discussed was very unintelligent on occasions. I pause to say that jocularly to my learned colleague, Senator Greenwood. My submission is that clause 10 would apply. It states that a person exercising any powers conferred upon him by clauses 6 or 7 shall avoid so far as is practicable causing damage to any property. I venture the opinion that if, on objective assessment a judge is satisfied that avoidable damage is being contemplated he will issue an injunction to preserve the property which is otherwise in danger. I rose only to offer my observations on matters which arose during discussions of the legislation at the committee stages.
– I shall leave matters of interpretation to my learned colleague Senator Greenwood because I am only a simple farmer. 1 come back to clause 6 and I must say that I have not received any answer that satisfies me with regard to this provision. As I understand it, an authorised person, or a person authorised by an authorised person, may enter upon any land without giving notification to the land owner that he has so entered upon his land. This is the first point to which 1 take exception. I agree with Senator Cormack that we in this place are becoming a little sick and tired of measures which give power to people to enter without warrant, and so on. This clause is an extension of those powers to which we have taken exception in the past and to which I hope we will continue to take exception in this place.
In the Bill I find no safeguard for a land owner, other than ultimately through compensation. Nor do I believe that there is any safeguard for the Commonwealth in respect of any act by one of its authorised servants. It is all very well to argue that clause 10 provides that a person is to avoid, so far as is practicable, causing damage to any property, but I do not know what sanction is applied to the words ‘so far as is practicable’ and who defines what is meant by that expression. I do not see any safeguard in the use of that term, and I certainly see no safeguard for a landowner where a person is authorised to enter upon his property without giving any form of notice. I plead with the Minister to accept Senator Greenwood’s suggestion that the Committee report progress because, as a matter of principle and as a matter of conscience, I take the strongest exception to these powers being granted. I can see nothing to prevent any authorised person from giving notice in writing to a landowner who may then take whatever measures he considers necessary to protect his property and those things that are on his property. 1 make one further comment with regard to clause 6 (2.) (a). I would interpret this provision to mean that a person may take upon land such vehicles, equipment and other things as he considers necessary. I draw the Minister’s attention to a recent case in Western Australia, I think at Denmark, which did not concern the Commonwealth but involved surveying. In that case a helicopter landed on a property and caused considerable damage to stock. The question of compensation is now before the courts or is likely to come before the courts shortly. This is the kind of action that may happen more and more with the increasing use of helicopters which may land on a property without notice being given to the land owners that it is proposed to land there. I urge the Minister to report progress so that we may have another look at these provisions to which so much exception is being taken.
– It is very welcome to me, as it must be to other senators, to hear the discussion on this matter. One of the most important functions of this Senate is to ensure that legislation is in conformity with our notions of civil liberties in this community. A few months ago, as honourable senators will recall, I spoke about the series of Acts, affecting rural people especially, which seemed to be extending further and further powers of entry and search which did not seem to be warranted. On each occasion the justification was that for some special reason it was necessary to have these powers. Al that time I thought it was the sense of the Senate that it was time that we stopped it. Notwithstanding that the particular Bill went through - I think because it was to operate from 1st July - nevertheless the sense of this chamber was against the inclusion of such provisions in any Bill.
I think what has been said by honourable senators is sound. This is an important measure. The surveys referred to in the Bill extend to all sorts of matters. Although the reference is to a mapping survey, this could be quite wide when one considers the definition of ‘survey’ which includes geological surveys and so forth. The implications of that word may be very wide indeed.
– A survey of the earth’s natural resources.
– Yes. There is no limit to what might be done under this provision, despite the apparently simple words ‘mapping survey’. When one hears those words one thinks of a few lines drawn on a map, but when one sees the extended definition it becomes obvious that there is a very wide power. We believe that there must be a power to carry out such surveys, but why cannot notice be given of intention to enter? Why should this be restricted to cases where it is intended to trim, lop off or cut down any tree or bush? It also seems to me to be sense to say that if this power is being given it ought to be given for the purposes that are specified and should not be extended beyond those purposes to enable a person to do things or take things upon the land as that person considers necessary. I do not think that . extension should be there because it means that in a critical case there is a justification for doing something which is not necessary but which is considered by the person to be necessary. If the provision is not there to cover that situation then it is not there to cover anything and there is no reason to have it.
– What does the honourable senator say about clause 10 which puts an objective limitation on the power?
– I would say that it may be as the Minister has said, that there is a limitation in that the citizen who is concerned can go to the equity court and spend his money in asking for an injunction. It is not certain, but probably the Minister for Works (Senator Wright) is correct in that a person could get an injunction, but what kind of position is that to put a citizen in? Are we to begin by saying that there is a legal remedy by injunction? This is not the way that we ought to be dealing with this matter. We ought to give such powers as are necessary and not extend them by the words ‘that he considers necessary’. This is redolent of what was attempted in the Communist Party Dissolution Bill. This is not something which we should allow to creep into legislation. Also, there should be a provision for giving notice.
– All Parties believe this Bill is necessary for a particular reason. Honourable senators opposite who have spoken in this debate, and Senator Greenwood and Senator Sim, are objecting to it because of the situation of one or two landholders. I agree that those people have certain rights, but the science of mapping has evolved to a stage where the tempo of field work has markedly increased. With the more expensive employment of aircraft and helicopters, large numbers of people in ground parties must be able to move quickly to their designated stations. Refusal on the part of one or two landholders to co-operate could cause serious and expensive delays. An integrated system of land and supporting airborne operations could break down with the high charges of aircraft and personnel continuing while a matter is resolved. Without legal authority for entry a season’s work could be jeopardised, causing a loss of many thousands of dollars. In deference to the views of my colleagues Senator Greenwood, Senator Sim and Senator Cormack, I suggest that we take time to consider their views.
Debate resumed from 19 August (vide page 128), on motion by Senator Anderson:
That the Bill be now read a second time.
– May I suggest that it would be convenient and appropriate to deal with this Bill together with the Defence Forces Retirement Benefits Bill?
The DEPUTY PRESIDENT (Senator Drake-Brockman) - There being no objection, that course will be followed.
– It is true that the Defence Forces Retirement Benefits Bill is a complementary measure to this Bill, which repeals the 1966 legislation. It has been indicated by the Minister for Supply (Senator Anderson) that it has been necessary to bring in new legislation because the 1966 Act was the only means then available to the Government to make sure that the constitutional disqualification of national service officers and men from parliamentary candidature could be removed. This Bill provides measures in respect of the rights and entitlements of all members of the defence forces to contest parliamentary elections.
The Opposition supports the Bill, although it contains some provisions about which we are concerned. Comments have been made in another place about them. But generally speaking, we approve this legislation which will give all members of the defence forces the right to contest parliamentary elections providing they are bona fide candidates. In the event that as candidates they are not elected to Parliament - either State or Federal - their rights, privileges, rank, status and promotional opportunities within the Services are to be preserved by a reinstatement procedure. We regard these measures as good.
The Bill provides that an officer of the defence forces who wishes to contest an election is to be transferred to an appropriate reserve force. Other members of the defence forces who wish to contest parliamentary elections are to be discharged, and the continuous full time service of a member of the citizen or emergency forces who is rendering such service is to be terminated. We accept that candidates must satisfy the appropriate military or Service board that they are bona fide candidates. The Bill also contains certain reinstatement rights which will ensure that servicemen become entitled on resumption of their service, having failed to be elected to Parliament, to all the things they had before they decided to resign, or were transferred to the reserve in order to contest an election. The Opposition believes this to be a good provision. Under these conditions an unsuccessful candidate can make application to the appropriate Service board for reinstatement. A Service board may require him to complete the period of service when he has failed in the election.
One of our worries is that in this type of legislation the word ‘may’ is used - a military board ‘may’ or a Service board ‘may*. While this is consistent with the Public Service Act, for example, it does not convey the sort of clear entitlement which we think the legislation should contain. The matter has been raised previously and some assurances have been given, but it should be acknowledged in the Parliament that there is a clear entitlement for servicemen, in whatever capacity they serve, to apply for their rights, providing they are bona fide candidates at a State or Federal election. It should be clear that there is no impediment to their election, that they cannot be disqualified or discriminated against for political reasons. I do not think this would happen. I hope it would not. If he fails to secure election he should be allowed to be restored to his former position. That is the consistent modern practice, in industry generally and overseas.
These things should be guaranteed and it should be clearly understood and supported by the Government that that is the intention of the legislation. Where an officer or other serviceman genuinely wants to apply, there should not be a reason to stop him from doing so. It has been said that there may be a military purpose for restraining the enforcement of a serviceman’s rights, but in these days I cannot see any reason that would or should inhibit a person’s contesting an election. It is argued by some people that a man who serves as a permanent officer in a high position in the Army or another Service should not become involved in politics. 1 agree with the Government, as its supporters have stated the position elsewhere. We think that it is a modern trend which should be acknowledged by everybody, that a serving member of the forces ought to be able to take his place in the community. He ought to be able to take his place in the highest parliamentary office in the country because nowadays almost everybody has political ideas. Because a man is serving in the Army, Navy or Air Force he should not be circumscribed in respect of the rights enjoyed by all other people in the community. lt is a good thing that a member of the Services will be able to take part in the Parliament of his country. He should not bc impeded. In the event that the people fail to elect him, he ought to be allowed to return to his former position so that he loses no rights to pay or promotion. These rights are reserved. The corresponding defence forces retirement benefits legislation ensures that the rights of servicemen shall be retained in that respect. The general principles about which 1 have spoken are incorporated in the legislation. Our only reservation which has been expressed recently in another place is the repetition of the word ‘may’ which could tend to create an impression that the rights of an individual may not be preserved, that he might be prevented from attaining his aspirations for other than purely military reasons. As I have said, it seems to me that in these days members of the Services are required to become educated politically.
As everyone knows, there are requirements sometimes for serving officers and men to know the situation in the particular area of operation in which they are engaged to make them better soldiers. In addition there are educational facilities which allow serving officers and men to gain up to date knowledge of the important matters which concern the community. So political activity is instanced in the Services. As we all know, many serving men of various political convictions have returned to the community and have taken their place in the Parliament.
With the kind of reservation that I have mentioned - I will be very interested to hear what the Minister has to say about that aspect - we agree that the serving man should satisfy a particular authority that he is a genuine candidate, but we do not see the need to confirm the practice which appears in a lot of Public Service legislation which makes this a matter of discretion. We should acknowledge that a man has a right to contest an election and to return to his old position later. That is the general intention of the legislation.
– irrespective of where he is serving and what he is doing?
– There are some special circumstances but I express the opinion - the honourable senator may have a different opinion - that there would not be any situation in which a serving officer or man, having regard to the world as we know it today, could not be released to his own benefit, to the benefit of the community and to the benefit of the Services because the fact of becoming a part of the community must do something for his performance as a serviceman. Broadly we know that in other parts of the world there is an intention to involve members of the armed Services in the affairs of the community so that they may be more quickly and more directly attuned to community objectives. Those are the kind of problems that we see with the legislation. Otherwise we see it as a step which should be taken in this modern world. We can see that there will be great benefit to members of the Services and to the Parliament but we would like to see the intentions drawn more strictly to ensure that there is a clear title to those who wish to contest an election to be reinstated in their former positions.
– The Leader of the Government in the Senate (Senator Anderson) has suggested that we should discuss these two Bills together. I agree that they are cognate Bills and I am willing to deal with them as has been suggested. However, 1 find myself in a rather unhappy situation in a personal context because 1 oppose a Bill the sponsor of which is the Minister for Defence (Mr Fairhall) who has announced his retirement from the Parliament after long and arduous service covering 20 years. 1 find it rather sad that on the eve of his retirement after lengthy and loyal service to this Parliament and to Australia I should be opposing a Bill which springs from his responsibilities. I oppose these two Bills, related as they are, for some specific purposes which I hope I shall make clear to honourable senators.
My attention was drawn to these Bills being on the slips, as it were, by reading the Hansard report of another place. 1 noticed that the honourable member for La Trobe (Mr Jess) made some strictures on the Bills. As a result, I have given these Bills some thought and the more thought 1 have given them the more disturbed I have become at the principles which are enunciated in them. At the outset I make the point that the Bills deal with two separate levels of the armed forces - the Navy, the Army and the Air Force. They deal with the citizen component of the armed forces, in the first place, and with the professionals who compose the Navy, the Army and the Air Force, second place. I refer to the concept of the citizen armed forces which we drew from the United States of America - that is of the citizen under arms. I agree that the citizen under arms cannot be divorced from the political responsibilities which he normally assumes in the course of his civil vocation. The citizen sailor, the citizen soldier and the citizen airman are faced with the highly political circumstances in which they serve their country, either in peace or in war, and therefore they cannot be divorced from the responsibilities that they owe to the political background which has fallen their way. But I do not accept the concept that the regular of the Navy, the Army and the Air Force should involve himself in politics, and it is to that sector of the Bills and that principle which has been placed in them that I wish to address myself.
In the course of my reading after being attracted by the debate which ensued in another place I came across a rather striking phrase used by the Chief of Staff of the United States Army in an address he made to a gathering of intellectuals, young or old, in the United States of America. He referred to the legislative army. The reason why he used those two words ‘legislative army’ was that he was referring to Cromwell’s army. Cromwell’s army was a legislative army. In other words, the army created by the great revolutionary of the 17th century in the United Kingdom was a professional army which was involved and embebbed in the politics of the day. lt was an army to enforce the will of the dictator of the day. It was a professional army created by the dictator of England by which he enforced a system of government against which the Parliament was powerless. The realm was governed by an army. That occurred 300 years ago. In the 300 years since then men have been attracted to Parliament by a desire to create the circumstances in which there would be armed forces which were not involved in politics. So gradually in the 18th century and the 19th century the concept of a nonpolitical Navy, Army and Air Force grew. This was a part of the tradition that we inherited or brought with us across half the world to Australia. This has been the concept in the Australian Labor Party since federation and since there was born a national defence force.
I suggest it did not matter very much in the period to 1939 because we did not have, for example, a Regular Army. We had what is known as the Australian Staff Corps, the Australian Instructional Corps and the civilian soldier in the Citizen Military Forces. However, today the situation has changed. Although we have had a Regular Navy which has never been intimately involved in politics and, in the modern context, we have had a Regular Air Force which so far as I know has never been intimately involved in politics, there is today a new concept because of the circumstances in which we find ourselves in the international sphere and we have a substantial Regular Army and a body of regular officers who are professionals in the truest sense of the word, lt is now proposed to provide the means by which politics can enter these regular forces.
This problem, of course, was faced in the United Kingdom.. 1 think in 1941, when a select committee of the House of Commons was set up to examine the problems that related to the employment of soldiers, sailors and airmen under the question of office of profit under the Crown. The record of the proceedings of that select committee is well worth examining because some of the problems that engage my mind came up before the committee. 1 do not think we should lightly pass these Bills without some pretty close examination of the principle that they seek to enshrine. Problems can arise in a regular force, particularly in the case of the Army because it is on the ground. It is the Army, as it exists in our historical memory, that we tend to fear. The problems, as I see it, of the regular forces are that the regulars are an instrument to carry out the wishes of the Government, which is, of course, responsive to parliament.
It is the function of the armed forces to be an instrument of the will of the government, which is responsive to the parliament. Therefore, the attitude of the officer corps inside the Regular Army must be divorced from politics. I suggest that if the will of a future government to move a battalion on an airlift, for example, to deal with circumstances that we can readily imagine could arise, were opposed by officers inside the Regular Army, Air Force or Navy, the position would be hopeless. We will set up under this system the means by which there can be embedded inside the regular forces of the Crown or the Government of Australia a coterie of officers, for example, who could seek to reject the demands that have been placed upon them by seeking to enter parliament. In the process of an election they can begin to canvass an opposite point of view from that of the Government on a political basis, or give it a political overtone in defiance of the strategic and tactical doctrine and the obedience that any government must require from its armed forces. I say as emphatically as I can that the regular armed forces, the Navy, Army and Air Force, particularly the officer component of those forces, must be obedient to the Government without question. Yet the process that these Bills seek to enshrine is that we provide the opportunity by which the officer corps of the armed forces can reject the will of the government of the day. I suggest, further, that the regular officer who becomes a politician departs from the very code ot discipline of the force which he has agreed to serve and from the terms of the oath he has taken to serve the Crown. The more senior is the officer of the armed forces who departs from this code the more heinous is the crime that is committed.
– You mean while he is a member of the Service?
– Are you seriously saying that he could do this while he is a serving member?
– Under the Bill he can seek to get leave from his appropriate Service board. What will be done with this officer when he has been unsuccessful in entering Parliament and he comes back? Two things immediately flow from this. Either the Service board refuses to employ him or he goes back into the Service on the appointment that he held before seeking leave to go out and become a politician. Then the Government is confronted with the knowledge that inside this Service is an officer who is not in favour of the policies that the Government requires him to espouse. I go further than that. If there tends to exist inside the armed forces a body of officer opinion that is contrary to the expressed policy of the Government, what can any government do when it calls for advice which should be unbiased advice divorced from all political overtones? It will know that because crf the circumstances that exist the advice that it gets may not be unbiased advice because it has political overtones.
– At the top level?
– At the top level the advice could have political overtones. I am not arguing on behalf of the present Government or a particular future government.
– It applies to governments regardless of colour.
– Yes. We will be setting in motion processes whereby we can have politically motivated groups inside the armed forces because we are opening the gate to allow an individual to express and espouse political causes. There are many illustrations of this. 1 have cited in the first instance the illustration of our own history as a people with a legislative army. Let us have a look at some of the problems of the modern world. There is a political army in the Republic of Indonesia which is next door to us. This is an army which is political from the very bottom to the very top. Indonesia is a one-party state with a oneparty army that controls the whole country. The argument may be that this is a country in a state of evolution.
Let us have a look at the Republic of France. I suppose it has been in a state of evolution for 1,000 years but it is only in the last 10 years that a highly political army took over France. General de Gaulle could never have taken over France although he got the sanction of the National Assembly without the army on his side. In fact he got the sanction of the National Assembly only when he had got the army - a political army - on his side. I suggest that it may be argued that the reason why France has never been an effective world power since 1870 is that the army of France has always been embittered and schismatic as a result of politics. With that knowledge of events within our collective lifetimes we are now saying that we think that politics should be allowed to enter into the regular armed forces - the Navy, Army and Air Force - and this Bill is the means by which we shall allow this to develop.
– The Service board will have a discretion.
– Of course it will. We know that. But why should the discretion exist? The officer of the Navy, Army or Air Force takes an oath to serve the force, to be part of an organisation which is there to discharge the will of the Government. Then we say that he may under certain circumstances be relieved of this oath, go out onto the hustings into the political field, advocate a course of action which is not in accordance with that of the Crown which he takes an oath to obey, and then seek to come back into the Service.
– Does the regular officer take an oath that he will not participate in party politics?
– Not as far as I know. A soldier takes an oath to serve the Crown.
– What do you think of the association between John Curtin and MacArthur? Did politics hurt their association?
– I am not talking about that. I am talking about other circumstances altogether. That was a war time association in which we were allied to the United States of America. Australia through the mouth of its Prime Minister and the will of its Government and with acceptance by ils Parliament agreed to put the armed forces of Australia under the command of a general’issimo, General Douglas MacArthur. No-one argues about that. But, whether one agrees or not, in the later stages when MacArthur was governor-general, as it were, of Japan and when the United Nations became involved in the Korean War he became a political general and because politics entered into his concepts, the President of the United States had to remove him. That is only the answer to the honourable senator’s question. I do not think it is germane to the argument I am developing at present.
There is another matter that has been overlooked. The Australian Labor Party, including Senator Ormonde, should be pretty sensitive to it. In 1947, as I recall, the government of that day demanded of members of the Australian Army that they enter the coal fields of the Hunter River valley and dig coal on behalf of the Australian people. What sort of circumstances would have existed if the Army suddenly had started to produce people who wanted to contest elections because they did not approve of the policy of using the armed forces to dig coal on behalf of the Australian people?
– Does the honourable senator think about the army in countries such as Spain, Greece and even South Vietnam?
– I think of them very much. They are highly political armies. That is the very thing that I want to avoid in Australia. 1 do not want to see the gates opened to allow our armed forces to become highly political armed forces. I do not want to weary the Senate very much longer. 1 believe that it has made up its mind on these two Bills. I think it will pass them. There is little else I can say.
The second of these Bills - the one that relates to the defence forces retirement benefits scheme - sets up its own curious paradoxes, too. If an officer decides to resign from the armed forces because he believes that the armed forces of which he has been a member for a long time are assuming characteristics and qualities of which he does not approve, of course he is entitled to resign. If he resigns he forfeits all his entitlements lo defence forces retirement benefits. However, if an officer takes a political stand, receives permission from his service board, stands for election and reapplies for admission to the armed forces and then his service board translates him administratively to a Devil’s Island, 1 there is no appeal against that. If the Secretary of the Department of the Army says: ‘Colonel Joe Blow, or Colonel Atkins or MajorGeneral Smith is now being posted as liaison officer to the Cook Islands’, that is where he goes. If, in protest against that, he resigns, he forfeits all benefits under the defence forces retirement benefits scheme. I believe that in this scheme there should be some means whereby an officer who feels that he can no longer follow the pattern of the armed forces and who wishes to retire a able to do so. Having made these remarks, I commend the Bills to the Senate for a little more careful scrutiny in terms of principles than has been accorded to them either in another place or in this place up to the present moment.
– I rise to support these Bills in accordance with the arguments that were put forward by Senator Bishop and with the reservations about the use of the word may’ that Senator Bishop also put forward. I have risen in order to comment briefly on what Senator Cormack has said. I believe that it is worthy of a great deal of careful consideration. I have not any doubt that many people within the Australian Labor Party and among its supporters would agree wilh what Senator Cormack has said, because what he has been advocating is something that 1 believe to be most desirable; that is, that the armed forces should be retained as non-political institutions. He has pointed, quite correctly, to various countries in which the politicalisation of the armed forces, in particular the army, has had quite a serious and sometimes disastrous effect on the political life of those countries.
For example, there would be no question that the destruction of democracy in Germany in 1933 took place because the German Army at that time was political. This subject was studied at some length by an officer of the Australian Army with whom I think Senator Cormack is acquainted. I refer to the role of the German Army in the development of Nazism in that country. Senator Cormack s position, as I understand it, is that there should be virtually a complete embargo on political activity by Army officers, as he believes that this will prevent the Army from becoming political and will prevent it from playing in Australia the sort of role that armies have played in the countries to which he has referred. Although 1 respect that position, my own view and the assumption underlying the Bill - I believe that whoever drafted the Bill was correct in making this assumption - is that in fact the prevention of Army officers from taking part in normal political activities, far from stopping the Army from going political, in fact could make it become political.
If one thinks of what happened in pre- 1933 Germany, in France or in Greece - 1 am not specifying those countries for any reason; there are many others in which the army has had this political emphasis - one sees that the problem has been not that officers of those armies have been contesting elections as the candidates of different political parties but that there has been a certain esprit de corps among the general staff of those armies which has meant that the army has acted virtually as a state within a state, making determinations behind closed doors and deciding to intervene on various occasions in the public life of the country.
I do not think anybody would say that what was wrong with the Wehrmacht in Germany between 1920 and 1933 was that a lot of Germany Army officers were contesting elections - some as Conservatives, some as Social Democrats, some as Communists and so on. In fact, I think it would probably be found to be the case that very few, if any, serving German Army officers were contesting any elections at all. As Major O’Neill has pointed out, the problem was that the German Army was acting as a political force in its own right, making its own determinations, not by its members contesting parliamentary elections but by decisions that it took virtually in secret meetings.
What the Bill is proposing to do - this is the reason why the Australian Labor Party supports it - far from having the Army, the Navy or the Air Force as a separate force within the society, is rather, as Senator Bishop has pointed out, to include the armed forces as part of the community in general. We say that the members of the armed forces are not members of some spiritual elite, as the French Army believed itself to be. The members of the armed forces are citizens of the country in the same way as people who follow any other occupation are citizens of the country, although some of them support the Liberal Party, others support the Australian Labor Party and others support other political parties. If they contest elections, it will mean not that the Army as such will be a political force but that the individual members of the Army will be functioning as individual members of the community in the same way as dentists, lawyers, farmers and everybody else function as individual members of the community and not as a bloc. In the case of the armed forces it would be a particularly powerful and well armed bloc which could disturb the whole of the political situation within the country.
I think we should appreciate that there are some problems in this regard. In some circumstances one could hope only that the good sense of the officers or appropriate authorities involved would prevail’. I can well imagine that it would be a very strange situation if. for example, the Australian Chief of the General Staff were suddenly to resign his position before an election, contest the election, fail to be elected and then return to his former position when he had made it perfectly clear during his election campaign that he was totally opposed to the policy of the Government. Clearly this would be a most difficult situation for any government to be placed in and it would hardly seem unreasonable if the government concerned were to say that despite the Act it found it impossible to continue to have that officer as Chief of the General Staff.
– In such a case the officer could retire or resign.
– I agree with Senator Gair that in the case of a very senior officer holding such a senior position it would be unreasonable to expect such latitude to be extended. He could hardly expect to resume his former position if he were defeated at the election. 1 do not think the Act could provide for this sort of high water mark. I do not think a provision could be inserted to prescribe the highest position which one could occupy and still contest an election. The legislation having provided that serving members of the forces can contest these positions, it would have to be left to the discretion of the authorities and the officers or members of the forces involved to deal wilh these matters as they arose.
This Bill, in many respects, is quite a novel experiment. If the sort of difficulties envisaged by Senator Cormack appeared to be developing then obviously the government of the time - whichever party is in office - would have to take another look at it. However, as the Bill stands at the moment, it seems to us that it will extend democracy within the armed forces. In fact it will take the armed forces out of the specially secluded position which they may now occupy and it will do something to advance the cause of democracy within the armed forces and the community in general.
– in reply - I have listened to the debate with considerable interest. Some arguments have been introduced which go to the very heart of the issue involved in this Bill. Without disrespect to Senator Bishop, who led for the Opposition - I will refer later to the points he made - I would like to deal firstly with the contribution made by Senator Cormack. I think it is fair to say that Senator Cormack argued against the very substance of the purpose of the Bill. For that reason there is no element of compromise between the point of view he expressed and the Bill itself. The Bill sets out to replace the 1966 Act which gave to national service officers and national servicemen the right to contest Federal parliamentary elections. The Bill will replace the 1966 Act and will widen the eligibility for Service personnel to contest parliamentary elections. It widens eligibility to the extent of encompassing the professional soldier, or the regular soldier, as Senator Cormack pointed out. Perhaps professional soldier’ would be the better term to use.
If it were not proposed to do this then the Bill would not have been introduced. That is the purpose of the Bill. I listened to the argument and I agree, as Senator Wheeldon agreed, that one could argue from the base from which Senator Cormack chose to argue. All I can say is that the Government is aware of that argument. It would have had to be aware of it when it chose to bring in this Bill because that is the very keystone of the Bill. It is fundamental to the Bill.
The argument suggests that whereas a citizen soldier, a national service officer or national serviceman, may be only in the Service for a short time, he remains a citizen; but a regular soldier makes the Service his career and therefore he has to contract himself completely out of any political activity. I suppose that so long as the professional remains in the Service he has to adopt that position. Nobody assumes, of course, that because a person is a professional soldier he cannot hold political views. That is not the case. Professional soldiers do hold political views.
There is an analogy to the Public Service. The great mass of loyal public servants serve the government of the day. They are loyal to the government. As Senator Cormack said, they express the will of the Parliament and give complete loyalty to the government of the day. But it does not necessarily follow and in fact does not follow that they have no political mind of their own.
– They have this right too.
– Yes, that is the point I am coming to. The situation facing the public servant wishing to contest an election is that he has to resign but later he has the right of reinstatement. The only difference between that case and this is that the professional soldier is to move into a reserve corps for the period of his electioneering. If he fails to be elected he then returns to his original position. Whilst to a degree I recognise the argument put by Senator Cormack, it seems to me that there is not a great deal of difference between the professional soldier - after all, he is a public servant - and the public servant in a high position. The public servant could hold a position in the Department of External Affairs, or in the Prime Minister’s Department, or he could be employed in the economic and commercial side of government. He gives his loyalty to the government. Despite his political views, even when the composition of the government changes, he still gives his loyalty to the government. That is the fundamental point of this argument.
The government in the Federal sphere is not likely to change for a long time. However, in the State sphere recently there was a change of government. I am quite certain that this same loyalty would apply to any government. All of us recognise this. To reduce it to simplicity, in the event of a change in a State government I am quite certain that the public servants would give the same complete loyalty to the new government as they did to the old government. This is part of their faith, part of their oath and part of their responsibility. I do not think we can distinguish between the national serviceman, the man who is a member of the Citizen Military Forces and the professional or career soldier.
Senator Bishop’s argument, when it is boiled down, is whether the verb used should be ‘may’ or ‘shall’. This point was brought out in another place. I think perhaps the best way to answer him on that point would be to refer to what the Minister for Defence (Mr Fairhall) said in the other place on this issue. He said:
I particularly underlined the fact that the exigencies of the Service would need to be considered by the appropriate Service Board before it would be obliged to transfer or otherwise to discharge a serviceman for the purpose of standing for an election. I do not think we can approve any other course. I think that other honourable gentlemen in the Opposition may rest assured that the mere passage of the Bill, in these terms, is the best indication to the Military Board or to the Service Board of what the Government has in mind.
All that statement means is that, by the very nature of things, circumstances may arise in which discretion must be exercised. Senator Wheeldon gave, 1 thought, a classic example. By a process of reducing circumstances almost to absurdity he was able to point up a situation which showed that circumstances could arise whereby, in the interest of the Service, the substitution of the word ‘shall’ for the word ‘may’ would be inappropriate. The Government’s intention is quite clear. We believe that, unless special circumstances exist - and they would have to be brought out into the open and examined completely in the open - every serviceman shall have the right to stand as a parliamentary candidate. I think that, in our democratic world and with the form of government that we have, that is the right of every voter. I do not think his standing for election will impinge upon his loyalties. Every serviceman, be he in the Army or in the Public Service, is human and has his own philosophy. If he does not succeed at the election and if: he returns to the Service, the fundamental principle of his service will prevail; he is there as a servant of the public, as a servant of the Government and a servant of the Parliament and his loyalties will apply in that way. I thank the Senate for the quick passage of the legislation.
– Mr Acting Deputy President, you are about, to put the question. I draw your attention to standing order 1 68, which reads:
A Division cannot be called for, unless more than one voice has been given for the Ayes and likewise for the Noes: Provided that in such case the one Senator calling for a Division shall be entitled to have his vote recorded in the Journals.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Consideration resumed from 19 August (vide page 129) on motion by Senator Anderson:
That the Bill be now read a second time.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 19 August (vide page 127), on motion by Senator Wright:
That the Bill be now read a second time.
– Earlier today we had quite a considerable and interesting debate on the Mapping Surveys Bill. I would like to see the Government go further in the mapping field and map the oceans that surround Australia. I notice that the Budget papers make provision for the Royal Australian Navy to purchase or to have built an oceanic survey ship. 1 think this is a very belated move. We know very little of the waters surrounding Australia. The purpose of the Bill before the Senate is the acquisition of certain areas of the sea and islands adjacent to Australia as Territories of Australia. As honourable senators will know, over the last couple of years a lot of publicity has been given to the protection of the Great Barrier Reef off the coast of Queensland. We know nothing about the currents that move out of the Coral Sea into the area of the Great Barrier Reef. The Minister for Works (Senator Wright), who moved the second reading of this Bill in the Senate, asserted that, when we acquire these islands, we will acquire along with them the continental shelf and the right to exploit and explore this continental shelf. Yet we know nothing about the effects of what we might do in this particular area. I would urge the Government to consider making a survey of these areas at the earliest opportunity even though it means hiring the boats, equipment and scientists necessary to carry out the work. Quite recently Australia received a lot of adverse publicity over its dealings with the indigenous people of New Guinea in connection with the Bougainville project. I say that it is adverse publicity that the Australian nation cannot-
– Order! You are not going to pursue that too far in relation to this Bill, are you?
– Yes. I propose to do so because it becomes relevant to the Bill if you will allow me to proceed. This adverse publicity is not good for Australia and I think most Australians would not welcome it. When we look at the area described in the preamble to the Bill that we are now considering, we find that it encroaches very deeply into the adjacent area of Papua. In fact, the area that is proclaimed under the Bill takes up almost half of the waters that have been reserved as the adjacent area for Papua. I have tried, with my limited knowledge of mapping, to map it out and I find that the area mentioned in the preamble to the Bill has a northern boundary of 12 degrees south latitude and the adjacent area which, according to the Petroleum (Submerged Lands) Act is allocated to the Territory of Papua extends down to 14 degrees 45 minutes south latitude. So it encroaches quite a long way into the adjacent area that has been allocated to Papua under the Act to which I have referred.
This Bill extends the Territory of the Coral Sea Islands to 57 degrees 10 minutes east longitude and the adjacent area of Papua is extended to 156 degrees 35 minutes east longitude. If we study the maps contained in the Schedule to the agreement between the Commonwealth and the States, we see that approximately half of the area proposed to be appropriated is now included in the Territory of the Coral Sea Islands.
– You are not suggesting that these waters are native lands?
– I am suggesting that under the Petroleum (Submerged Lands) Act the Commonwealth saw fit to include in the Schedule to the Agreement various areas of water that would be administered by the various States and Territories of the Commonwealth. In the area that is allocated to the Territory of Papua is part of the area that is now to be included in the Coral Sea Islands Territory.
The reason why I mentioned Bougainville was that we got adverse publicity over it. When it comes to the knowledge o( the world that Australia has declared as part of the Territory of the Coral Sea Islands areas that had been allocated to the Territory of Papua as off-shore areas, we could again get adverse publicity overseas. In any case, at the time when Papua and New Guinea have independent governments of their own, we are likely to run into trouble with the indigenous people there if we appropriate from them at this time this area which we have already allocated to them under the Petroleum (Submerged Lands) Act.
– There is no appropriation of their area under this Bill.
– Under the Petroleum (Submerged Lands) Act, certain areas off the coast of Papua were allocated to Papua as areas adjacent to the Territory of Papua.
– That Act deals with submerged lands. This Bill only deals with the dry land of the islands.
– I am unable to follow the Minister’s reasoning. The Bill makes two declarations in its preamble. I fail to understand why. The first declaration is:
Whereas all the islands within an area the boundary of which commences at a point that is the intersection of the eastern extremity of the Great Barrier Reef by the parallel 12 degrees South Latitude and runs thence easterly along that parallel to its intersection by the meridian 154 degrees East Longitude, thence southerly along that meridian to its intersection by the parallel 22 degrees South Latitude, thence westerly along that parallel to its intersection by the eastern extremity of the Great Barrier Reef, thence generally northerly along the eastern extremity of that Reef to the point of commencement are territories acquired by the Commonwealth.
– Only the islands in that area.
– Each of which will have a continental shelf of its own under the International Convention.
– There is nothing in this Bill dealing with the continental shelf. It concerns the islands.
– If you will let me proceed, I hope to be able to point out to you that the intention of the Government is to acquire the continental shelf associated with these islands. The second paragraph of the preamble reads:
And whereas all the islands within an area the boundary of which commences at a point that is the intersection of the meridian 154 degrees East Longitude by the parallel 12 degrees South Latitude and runs thence easterly along that parallel to its intersection by the meridian 137 degrees 10 minutes East Longitude, thence southerly along that meridian to its intersection by the parallel 24 degrees South Latitude, thence westerly along that parallel to its intersection by the meridian 154 degrees East Latitude, thence northerly along that meridian to the point of commencement are also territories acquired by the Commonwealth. lt will be seen, therefore, that the Bill takes in all the islands and all of the continental shelf associated with them. Because this area is composed of a lot of reefs, there will be quite a considerable amount of continental shelf associated with those islands.
In order to make clear the Government’s intention with respect to the continental shelf, I refer to the second reading speech of the then Minister for Supply, Senator Henty, when introducing the Petroleum (Submerged Lands) Bill. He said: 1 should also mention that at a later stage the Commonwealth proposes that this offshore legislation will be extended to islands in the Coral Sea west of 158 degrees east longitude and to their adjacent submerged lands. We have advised the Queensland Government that when this is done arrangements will be made for the administration of the offshore petroleum legislation in this area to be dealt with by Queensland and for Queensland to receive the same proportion of any revenue as the State would receive in respect of its own adjacent area.
The foregoing arrangement is, we think, a sensible one and as a result I am glad to say that both the Commonwealth and the Queensland governments are agreed that the boundaries of the existing permits issued by Papua will be left undisturbed. lt is the Commonwealth’s intention under the Convention on the Continental Shelf to claim the right to the submerged lands of the islands of the Coral Sea. These submerged lands could, and I think do, encroach upon the area which was allocated to the Territory of Papua under the Petroleum (Submerged Lands) Act. I think we are all desirous of the indigenous people of Papua and New Guinea being granted independence at the earliest possible time.
If they are granted independence their government will be entitled to collect the royalties associated with the area, lt is not good for Australia’s image to intrude into an area that has already been allocated. Particularly, it is not good for us to do so at this time because we will receive criticism from overseas. I urge the Minister to examine this matter further. lt is said that there are no islands adjacent to where Papua intrudes into the Coral Sea. I do not think that is a sufficient answer. If there are no islands in the area there is no necessity for us to declare our sovereignty over the area. I repeat that the Commonwealth Government should have another look at the matter. I know that the Minister for Works, who is in charge of the passage of this legislation through the Senate, is eager to ensure that the constitutional provisions relating to the Territory of Papua and New Guinea and also of Australia are properly adhered to. I urge him to have a look at the maps associated with the agreement between the States and the Commonwealth on submerged lands. I said earlier that we have little knowledge, if any, of the way in which the currents flow in the area. Earlier I pointed out to the Senate that it is the Government’s intention to permit the Queensland Government to administer the exploitation and exploration of the Coral Sea islands area.
I have looked through the Constitution but cannot find any reference to the powers of the Commonwealth in respect to the conservation of natural resources. However, I found that under the Convention on the Continental Shelf, which became operative in 1964 and to which Australia is a party, the Commonwealth has a duty under its external affairs powers with respect to conservation. Article 5 of the Convention states:
The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with the fundamental oceanographic or other scientific research carried out with the intention of open publication.
Despite the fact that the Commonwealth has no power under the Constitution to conserve natural resources, it has, as a result of becoming a party to this Convention, taken upon itself the responsibility of conserving natural resources in this area, if exploitation and exploration are to take place in this area damage may be done adjacent to the exploration and exploitation, but we do not have any knowledge of what it may be. This is a responsibility that the Commonwealth must take unto itself. Under this Bill the Government asserts a right over the islands of the Coral Sea area. That right is set out in the preamble to the Bill. The purpose of the Bill is to apply a set of laws in the islands that will make up the Coral Sea islands territory. I ask: What provision has the Commonwealth made to enforce these laws? What does the Government intend to do, apart from what is set out in the Bill, in regard to the courts of the Territory of Norfolk Island having jurisdiction over the Coral Sea islands? The laws will be by way of ordinances under the hand of the Governor-General. What facilities will be provided to enforce those ordinances? Australia has not been able to apply the fisheries legislation relating to its coastal waters. I suppose that similar fisheries legislation will apply to these islands, but no provision has been made to enforce the legislation. Whilst I welcome the Commonwealth Government’s decision to expand Australia’s influence in the area, I think it is quite useless to pass laws if we do not have the facilities to enforce them. The Government should inform the Senate of the facilities it has to enforce these laws.
I refer again to the second reading speech of the then Minister for Supply, Senator Henty. He was, of course, speaking on behalf of the Minister for National Development. That legislation proposed that the administration of the area - once the Act was gazetted, promulgated or whatever is required - would be placed under the administration of the Queensland Government. This is Commonwealth territory. It has nothing to do with the States. Whatever wealth is derived from it must flow to the Commonwealth Treasury and not to the treasury of any State. Operations in the area must be completely in the hands of the Commonwealth and not of the States. I remind the Senate that quite recently the High Court of Australia ruled that the States have no rights beyond the low water mark. Some legal opinion questions this decision, although I do not do so. The simple fact is that the Chief Justice, Sir Garfield
Barwick, and Mr Justice Windeyer decided the issue. It might be said that not sufficient argument was presented to the Court; nevertheless, the High Court gave a decision and, as a result of that decision, the States have no rights beyond the low water mark.
– It was scarcely a decision. Only two judges referred to it. They did not have to refer to it. One was against it and the others did not say anything.
– Perhaps the other judges were inhibited by advice from the Attorney-General not to make a decision with respect to territorial waters. Although it is true that three of the judges made no reference to territorial waters, the other three judges did refer to territorial waters. The Chief Justice and Mr Justice Windeyer decided that the territorial waters never at any time belonged to the States, that what were known as territorial waters were the property of the imperial Crown and eventually, on Australia becoming a nation, they belonged to the Australian Commonwealth - not to the States. This is borne out by the Constitution. Nowhere in the Constitution is there a reference to State territorial waters. The Constitution refers to territorial limits in section 51 (x.). The section states:
There is no mention of the States in this reference to territorial limits. Over the years a misconception has grown up that there are State territorial waters. If a study is made of Sir Garfield Barwick’s judgment in the case to which I have referred it will be seen that he refers to this misconception.
I want to make further reference to the Constitution because it seems to me that if, as it intended to do, the Commonwealth had, under the Petroleum (Submerged Lands) Act, vested the administration of this area in the Government of Queensland it would have been doing something which it was not entitled to do. Section 51 (xxxvii.) states:
Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to Stales by whose Parliaments the matter is referred, or which afterwards adopt the law:
But nowhere in the Constitution can I find any reference to the Commonwealth being able to cede matters to the States. As the area under discussion is Commonwealth territory and absolute Commonwealth territory - it is not by any means part of State territory - the Commonwealth is not empowered to hand it over to the States. The Constitution certainly does not give it power to do so. The Commonwealth may be able to deal with the situation as it has with the off-shore petroleum legislation by making a non-justiciable agreement. If it makes a non-justiciable agreement with the State of Queensland to administer this territory there is no means by which we can rectify the situation. Consequently I suggest that this legislation wants much more consideration before we take it upon ourselves to pass the measure. In his second reading speech on the Coral Sea Islands Bill the Minister said:
The possibility of exploration for oil on the continental shelf-
Not on the islands: and the increasing range and scope of international fishing enterprises illustrate the desirability of establishing a framework of administration and a system of law in the islands that will be certain and adequate.
It may be certain and adequate so far as the statute is concerned, but will it be certain and adequate if the means of enforcing it are not in the hands of the Commonwealth? Again I invite the Minister’s attention to the fact that it is not only the islands of the Coral Sea that are involved in the acquisition of territory under this Bill; the submerged lands of the continental shelf are also involved. It goes even beyond the continental shelf because the Geneva Convention extends the continental shelf to include the area of exploitability. Already in parts of the world drilling is proceeding al twice the depth generally attributed to the continental shelf, that is, 200 metres, and at present the Americans are conducting experiments with people living under water at depths of 2,000 to 3,000 feet for periods of up to 50 days. It is doubtful whether the waters of the Coral Sea would exceed that in any place, so the area of exploitability associated with these islands could be very extensive.
I urge the Government to look at the way in which this area overlaps the area which has been declared to be the area adjacent to the Territory of Papua and New Guinea and the repercussions that may flow from it internationally. We cannot expect the Territory of Papua and New Guinea to become self supporting if we are to take from it the areas that are likely to yield revenue for its support. There is already some difference about adjacent areas of Australia intruding into areas of Papua and New Guinea beyond the median line drawn between the two countries in accordance with the Convention. I urge the Government to have another look at this provision in the Bill. I have no quarrel with the rest of the Bill. It sets out how the laws shall be made and dealt with by the Parliaments and the matters associated with them. I urge the Minister to discuss this matter with the Minister for National Development in order that it can be clarified, not only for Australia but also for the rest of the world. Let justice be done to the indigenous people of Papua. I am not saying that injustice is being done to them today, but I am saying that this thought could arise in the minds of people of other countries.
A study of the maps associated with the petroleum legislation and the adjacent areas allocated, and of the area declared in the preamble to this legislation, shows that there is overlapping. The intention of the Government is shown in the second reading speech of Senator Henty on the Petroleum (Submerged Lands) Bill and in the second reading speech of the Minister for Works on the Bill before the Senate today. It is clear that there is an overlapping that could reflect very badly on the Australian nation.
– The Bill before the Senate is the Coral Sea Islands Bill, under which the Government provides for the government of islands said to have been acquired by the Commonwealth. I say right at the outset that I support this measure. I think its significance is far wider than the expressed reasons in the second reading speech of the Minister for Works (Senator Wright) for the enactment of the measure reveal. As I recall the Minister’s words, he said that the possibility of a search for oil in the submerged lands of the continental shelf and the growing international ramifications of fishing made it desirable that there be for those islands administration and a body of law which is certain and adequate. They are telling reasons and they emphasise why the measure has been brought forward at this time. I think that the measure reflects in a rather striking way our evolution as a nation and our willingness to assert for ourselves those matters which in earlier days we would tend to by-pass or would allow Great Britain to assert on our behalf.
There are certain features of the measure which ought to be adverted to. As I said earlier, we are considering a measure of some significance. The Minister, doubtless for reasons desirable in his own judgment, did not refer to aspects of this matter which I think ought to be touched on because they illustrate that the problem is not without complexity. Before I turn to deal with those matters I think it is fair to refer to the studied contribution which has just been made by Senator Cant. I say with all respect to the honourable senator that there would not necessarily appear to be conflict between the provisions of the Petroleum (Submerged Lands) Act for the exploitation of petroleum resources in the continental shelf and the provisions of this legislation. I understand the Petroleum (Submerged Lands) Act to indicate the administration of the submerged lands adjacent to certain land masses.
For the purposes of convenience in administration the adjacent waters to the coast of Australia, and indeed to the coast of Papua and New Guinea, have been allocated as areas adjacent to territorial government. What has been allocated to the Territory of Papua and New Guinea may in some yet to be developed area of international law become in due course land within the scope of an independent Territory of Papua and New Guinea authority, or it may have some reference back to Australia as the country which allocated at a time before the Territory became independent or self-governing an area of submerged land which was to be administered through the Territory.
I sense that some explanation should be given by the Minister of why the boundaries under which the coral islands are declared and the boundaries of the submerged lands area adjacent to the Territory of Papua and New Guinea have not been made coincident. If this Bill is designed to deal only with islands and the description of those islands is made by reference to parallels of latitude and longitude, it would seem to be a very easy matter and a far more convenient method of description to have the parallels of latitude and longitude coincide with the parallels of latitude and longitude of the submerged lands adjacent to the Territory of Papua and New Guinea.
I think a very real question arises of whether the Commonwealth Government has power or authority to pass this legislation with regard to these islands and to claim to assert in respect of them an authority which would entitle Commonwealth law to be imposed in them.
Apparently the islands were discovered originally many years ago by British ships. In ordinary concepts of international law there would be an inchoate right in the British to claim that the islands were part of the territory of Great Britain. But it would appear that in the evolution of Australia’s development certain steps were taken with regard to these islands which raise a very serious question of whether they belong to the Commonwealth of Australia, Great Britain, the State of New South Wales, or possibly on one view - and I would think it to be a view without much substance - to the State of Queensland.
The Commonwealth is now asserting on its own behalf authority over these islands. Whilst I appreciate the strength of views which may be put forward whether these islands are either Great Britain’s islands or are islands belonging to the State of New South Wales, in the circumstances in which Australia finds herself I think it is appropriate that this legislation should be passed. If at a subsequent stage it were to be a matter of challenge between a State of the Commonwealth and the Commonwealth Government, that matter would be resolved - as I imagine it could be resolved - in the High Court of Australia. But until that event arises - and one hopes it will not - I think the government’s indication that it is asserting this authority is a pragmatic and practical step of value and one, as I said earlier, of some significance and consequence.
These islands were originally discovered by various British explorers. The first reference in the Australian development which might have included them was in the appointment of Governor Phillip in 1786. The limits of the jurisdiction given to Captain Phillip by the Government of the United Kingdom indicated that these limits were defined by a reference which stretched from Cape York to an area in Tasmania and as far east as to include all the islands adjacent in the Pacific Ocean within the latitudes which were specified, namely, 10 degrees and 43 degrees. When one considers that the reference is to ‘all the islands adjacent in the Pacific Ocean’ one can visualise that that could be interpreted narrowly or it could be interpreted widely. History subsequently has indicated that the expression was interpreted widely.
In 1787 the King’s Instructions to Governor Phillip indicated that, amongst other things, Governor Phillip was to colonise Norfolk Island. He was directed ‘to secure the same to us and to prevent it being occupied by the subject of any other European power’. In 1794 a criminal court was established at Norfolk Island. The expression used in the act of establishment was: ‘Being one of the said islands adjacent to the said eastern coast of New South Wales’. One can also refer to the Orders in Council under which offenders were transported to this part of the world. The reference there is to ‘the transportation of offenders to the eastern coast of New South Wales or some one or other of the islands adjacent’. So right at the outset of the foundation of the Australian settlement Norfolk Island was regarded as one of the islands adjacent. We know that Norfolk Island is of longitude 168 degrees and is approximately 1,000 miles from the Australian coast. So there is an early indication of the width with which the expression islands adjacent’ was interpreted.
In 1855 responsible government was introduced in New South Wales and the boundaries of the colonies were then defined. The New South Wales Constitution Act defines the boundaries of the colony as:
Comprising all that portion of Her Majesty’s territory of Australia lying between 129 degrees of east longitude and 154 degrees of east longitude . . . and northward of the fortieth degree of south latitude, including all the islands adjacent in the Pacific Ocean within the latitudes aforesaid, and also including Lord Howe Island.
From that description of the boundaries of New South Wales one can indicate that the same concept is expressed as was expressed in the original commission to Governor Phillip - that there were adjacent islands within the appropriate degrees of latitude which were to be part of the territory of New South Wales. In 1855 the State of Queensland had not been established, and the range of New South Wales as far as north and south were concerned was sufficiently extensive to cover the islands which are now part of the Coral Sea Islands.
In 1859 Queensland was formed by Letters Patent which were capable of being issued pursuant to the New South Wales Constitution Act. Those Letters Patent erected into a separate colony that part of New South Wales which was northward of a line commencing at the seacoast at Point Danger and it extended northward together with all and every the adjacent islands, their members and appurtenances, in the Pacific Ocean’. One might suppose that if those Letters Patent alone were considered what had previously been an area of New South Wales north of the line commencing at Point Danger thereafter became the territory of Queensland including the land mass and the adjacent islands. But within 12 or 13 years there had been an assertion by the State of New South Wales of a power to lease islands adjacent to the coast of Queensland, and particular problems then arose as to whether there was a power in the Governor of New South Wales to effect such a lease.
In 1872 further Letters Patent came from the United Kingdom which appointed the Governor of Queensland to be Governor of all the islands within 60 miles of that colony, and it authorised the annexation of those islands. In 1878 certain annexations occurred and in 1879 the Queensland Coast Islands Act was passed. That Act defined the area of Queensland and incorporated all the islands between the Queensland coast and the Great Barrier Reef. It did not refer to the islands to the east of the Great Barrier Reef within which would be included those islands which are part of the Bill now before the Senate. In those circumstances quite an interesting question arises as to whether, after 1879, these islands could be regarded as either New South Wales islands or Queensland islands.
– By ‘these islands’ you mean the islands east of the Great Barrier Reef?
– Yes I do, the islands comprised in the measure now before the Senate. On the strength of what I have said already I would have thought the claim that Queensland could make would have very little to sustain it whereas the claim which the State of New South Wales could make would be a substantial claim. This is a matter which has been adverted to by at least two lawyers of standing and eminence in this field. I refer specifically to the late Professor Cumbrae-Stewart who delivered an address to the Australian Association for the Advancement of Science in 1930 on the boundaries of Queensland. As I understand him, he suggested that there was a claim to those islands reposing in either New South Wales or Great Britain and he felt at that stage that the claim should be clarified because, with a certain perception, he visualised some of the problems which later were to arise with regard to ownership and control over the territorial waters.
– Where is that to be found?
– I think it is to be found in the proceedings of the Association. In 1964 Dr Darryl Lumb, of the University of Queensland, whose growing eminence in all these spheres is well recognised, delivered a learned treatise which he styled ‘The Maritime Boundaries of Queensland and New South Wales’. He covered much of the ground that had been covered by Professor Cumbrae-Stewart and went on to cover additional ground. He posed the two possible conclusions which could be reached with regard to the West Coral Sea outside the Great Barrier Reef. His first conclusion was that Britain had an inchoate title to these islands which were never included in the boundaries of New South Wales because they were not adjacent islands, and that this inchoate title had been defeated by the Commonwealth occupation sufficient to invest that body with sovereignty over the islands as a territory acquired by the Commonwealth under section 122 of the Constitution. I stop there to express the thought that this must be the basis upon which the Commonwealth purports to exercise the authority which is involved in the passage of the measure before the Senate I propose to examine that contention shortly.
– Was this right established at the time of federation?
– I might put it in this way. Such acts as Australia has asserted which would be sufficient to indicate that it has title to these islands under international law would have been acts taking place after federation, but it would certainly mean that at federation the islands did not belong to any of the States of Australia but were capable of being owned by Great Britain. The second conclusion which is reached by Dr Lumb is in this passage:
That the islands were part of New South Wales under the Constitution Act of 1855, as being adjacent’ islands, and that the subsequent Letters Patent issued between 1859 and 1878 which established the maritime boundaries of Queensland extended the sovereignty of the Colony of Queensland only to islands lying within a line drawn along the outer edge of the Barrier Reef. The islands, therefore, were never separated from New South Wales, and are part of the State of New South Wales at the present time. In the writer’s opinion this second view is to be preferred in the light of arguments advanced earlier. The mere absence of a designation of the eastern longitude in the New South Wales Constitution Act and earlier Commissions marking the limits of adjacent islands does not stand in the way of treating such islands as ‘adjacent’ in the geographical sense of that term. A glance at a map of the area would confirm this conclusion.
In very brief support of that contention one can say that if the map is taken and there is imposed upon that map that which the draftsman of this Bill undoubtedly expected senators to impose, it will be seen that the latitude and longitude indicate that there are included within the relevant areas islands to the west of the line of longitude such as Lord Howe Island and, naturally, Norfolk Island. Accordingly, one can only suppose that this fact, which indicates that the eastern longitude is well within the range of those islands adds some strength to the contention which is made that the words ‘adjacent islands’ in the New South Wales Constitution Act and in the earlier commissions are to be construed widely. T, for my part, consider that the views which Dr Lumb put forward, backed as they are by his own standing, are views which are not to be treated lightly and that they have a lot of weight behind them.
The alternative view, as indicated earlier, is that if the islands do not belong to New South Wales they belong to the Commonwealth, and they belong to the Commonwealth because there has been a Commonwealth occupation of them. This raises the interesting question as to how and in what ways Australia can acquire territory. Of course, the Commonwealth Government being governed by a Constitution, must look to that Constitution to ascertain what source it has for the acquisition of territory. Section 122 of the Constitution provides:
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
When one considers what is involved in Commonwealth action which would result in acquisition of territory it is found that there are three categories. Firstly, there is any territory which is surrendered by a State and accepted by the Commonwealth. Secondly, there is any territory which is placed by the Queen under the authority of the Commonwealth and accepted by the Commonwealth. Thirdly, there may be territory which the Commonwealth acquires under the constitutional expression ‘otherwise acquired by the Commonwealth’. Messrs Quick and Garran in the annotated work on the Constitution which was published at the time of federation said that this phrase ‘otherwise acquired’ is wide enough to cover the acquisition of federal territory by every mode within the power of the Commonwealth, either under the express words of the Constitution or by implication from its general quasi sovereign powers, as for instance the acquisition of territory by purchase or by cession from other colonies or countries not forming parts of the Commonwealth.
In that short expression there does not appear to be any expressed way in which the Commonwealth can lay claim to these islands. When it is suggested that it is deriving from the Commonwealth’s general quasi sovereign powers - as to the meaning of which there could doubtless be many views - one can readily draw a conclusion that that would be a sufficient source to enable the Commonwealth to acquire territory in accordance with generally accepted principles of international law. Undoubtedly Australia has availed itself in the past of this precept in order to obtain territory. The Commonwealth, as I understand it, has nine external territories and six of those have been acquired in procedures which could be regarded as inter se transactions between countries of the Commonwealth all deriving from the United Kingdom. But there are three territories which were not acquired in that way - the Territory of Papua and New Guinea, the Territory of Nauru, which of course has now acquired its independence and reduces the number from nine to eight, and also the Heard and McDonald Islands. Nauru and Papua and New Guinea derive from particular concepts involved in the League of Nations and the United Nations. Heard and McDonald Islands, as I think the preamble to the Act under which the Commonwealth Parliament accepted those territories shows, represented the first direct acquisition of territory by the Commonwealth in accordance with the traditionally and internationally accepted methods of acquisition of territory.
That came about, of course, in circumstances which did suggest that Great Britain ought to have been consulted, and it certainly was consulted, before these territories were acquired by Australia, and what was done was done with the acquiescence of the United Kingdom Government. As far as the Coral Islands are concerned, this is the first time, as I understand the position, that Australia has asserted for itself without reference to the United Kingdom in any way a title which it seeks to make paramount by virtue of an Act of the Commonwealth Parliament. Undoubtedly, there is substantial authority for Australia to act in the way in which it does. In Professor 0’Connell’s work on ‘International Law in Australia’ he refers to the status of claims under international law. Referring to Judge Huber, a member of the International Court of Justice, he states:
In the Palmas Island Case Judge Huber acknowledged that ‘manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place.
Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved’.
What is generally expected is that there should be an intention and a will to exercise sovereignty and that there should be some acts that indicate some occupation. It is interesting, therefore, to note what might otherwise seem to be an irrelevancy contained in the Minister’s second reading speech as to the acts of sovereignty upon which the Commonwealth relies. He stated :
A lighthouse has been erected on Bougainville Reef and beacons are operating on Frederick Reef and Lihou Reef. A meteorological station has operated in the Willis Group since 1921 and there is an unmanned weather station on Cato Island.
– Does the honourable senator know who pays for the upkeep of those facilities?
– I do not know. A Commonwealth department probably does, but I am sure that the Minister would be able to inform us on that. He also said in his second reading speech that these islands - whether all the islands or simply those few islands that were mentioned does not appear - have been visited regularly by Royal Australian Navy vessels. He added that survey parties from the Division of National Mapping in the Department of National Development have completed a survey of most of the islands. It may be thought that, because these islands are relatively adjacent and contiguous to the Australian mainland, on that account they are part of Australian territory. One can only suspect that that was not adverted to for fear that it might establish, in a way that was not intended, a claim by New South Wales.
I have taken the time of the Senate - I trust that f have not trespassed unduly - because it appears to me that this is a matter that has to be viewed in the light of the significance of the claim that Australia makes and the way in which Australia makes the claim. I have indicated my view that there is a substantial argument that the Australian Government has no title to these islands and that possibly the State of New South Wales has a stronger claim. It may be argued - possibly the point to which I am adverting has already been covered - that consultation could have occurred between the State of New South
Wales and the Commonwealth Government as to whether the Commonwealth Government could have had these territories ceded to it by the State of New South Wales which, of course, is a possibility contemplated by the Constitution. But, whether or not that has occurred, it appears to me that in the circumstances of these islands and in the light of the considerations that have been mentioned - the search for petroleum and fishing problems which have been growing in their intensity in recent years - on occasions such as this Australia should assert the control which must be made internationally. For that reason I believe that this is a significant measure. For the reasons I advanced earlier, it takes its place as the first clear and unequivocal claim by Australia, without reference to any other country at all, to territory over which it seeks to exercise authority.
– I support this measure which is designed to acquire sovereignty over certain islands and to make provision for the government of them. We might note that in the preamble to the Bill the Draftsman has taken the unusual step of dividing it up and setting out the boundaries even in minutes of longitude. He says that 157 degrees 10 minutes east longitude shall be the eastern boundary. That made me wonder why he had to take it to 10 minutes, which is near enough to 10 land miles. When I drew the boundary on a map, I found that the eastern boundary set out in the second part of the preamble goes very close to the Chesterfield Islands which are marked on the map I have before me as French territory and also to another group of islands which are a little further south and which are also marked as French territory.
It is a little unusual for the preamble to a Bill to be divided into two sections. I do not know what the reason for that is. The first section refers to a three-cornered piece of ocean including Willis Island, Lihou Reef, Marion Reef and some others adjacent to the Outer Reef of the Great Barrier Reef. The second part of the preamble refers to an oblong piece of ocean which goes very close to the islands off the eastern end of the mainland of Papua and south almost to the latitude of Gladstone in Queensland and, as I have mentioned, very close to French islands.
I believe that just to pass legislation acquiring these islands and making provision for the government of them is not enough. We have to go much further than that because, in my opinion, each and every island above water at high tide has a 3-mile territorial waters limit. I should imagine that the judgment on State territorial waters, which has been mentioned before, would not apply here because this is Federal territory. 1 believe that the 3-mile territorial waters limit would apply around each island. To be an island under international law, the piece of ground or reef or whatever it is has to be above water at high tide. Under previous legislation that we have passed in the last few years, each of these islands has a 12-mile fishing rights limit. That must apply automatically because it is Commonwealth territory. Therefore, for 12 miles around each island - that is, each piece of ground above water at high tide - we have exclusive fishing rights according to our own laws.
The question of sovereignty over the con.tinental shelf has already been mentioned and canvassed. It is stated in the second reading speech of the Minister for Works (Senator Wright) that this is to be the subject of a separate Bill. If we are to be consistent, we must pass that Bill even if we take into account the position pointed out by Senator Cant, namely, that some of this continental shelf has already been allocated to the Papua and New Guinea administration. On the continental shelf we acquire the rights to oil, minerals and the sedentary sea life.
I believe that the Government must now take action to show its interest in this new territory that it has acquired. I believe that an expert committee of scientists should be set up to make and supervise a complete scientific investigation and research programme not only in respect of tides and things like that but also in respect of ocean temperatures, the migratory habits of fish, food for fish and many other associated things. We do not know much about our Great Barrier Reef areas. Many statements have been made about the islands off the Australian coast, but over a long period no scientific research has been conducted by anybody or any authority in Australia. Yet people claim to be experts. Research has been carried out in short bursts but there has not been complete and adequate research. I believe we have to do this on these islands, and in the waters around them, which we are acquiring under this Bill.
– What type of research does the honourable senator envisage should be carried out by scientists?
– 1 envisage research into the tides, the temperature of the ocean, the type of marine life, moving and sedentary, the migratory habits of the fish and the food available to them. All these things would affect a fishing industry in that part of the world. We would know also what we were talking about with regard to oil prospecting and what would happen, because of the currents, if there were an oil leakage or something of that nature. We would be able to establish the likelihood of other mineral wealth under the sea in that area of the continental shelf. There are many other aspects which could be investigated by scientists. I believe that if it is to be authoritative the research has to be done by scientists. If we do not do this ourselves then somebody else will step in and do it. We would not be able to take action against them because we would not have consolidated our claim to this new territory.
I saw a report to the effect that a fairly sophisticated naval survey vessel is to be built which could be used for this work. However, I understand it will take up to 5 years to construct. I am told that the vessel is still only on the drawing boards. In the meantime I think a much less elaborate vessel should be chartered immediately and that work should be started at once on this type of research.
I cannot see anything wrong with the proposition that Queensland be made an agent State for the Commonwealth in the control of these islands. I believe the Commonwealth Government has adequate power to do this. Naturally the Queensland Government would have to account to the Commonwealth for its actions but I think this would be in order. Mention has been made of the parallels of latitude and the meridians of longitude used to define this region which covers a fairly large area of ocean and is claimed to overlap the PapuaNew Guinea continental shelf. I remind honourable senators that we have used this description to define the borders of Australian States, with one or two exceptions, and we have not had any trouble on land. I see no reason why we should have trouble from the use of this method to define the ocean. Adjustments can be made when we go into the matter of allocating the continental shelf in this area.
If the Commonwealth is going to allocate the work in this area to a State government 1 appeal to the Commonwealth to get on with this scientific investigation so that we will reach the stage of having authentic scientific knowledge of particular things; so that we can go ahead and develop the area if there is mineral or oil wealth under the ocean, or with the development of a fishing industry, if possible. We should acquire title to the islands so that we cannot be put out. We must have physical title, lt is not just a matter of passing an Act here, or a matter of making lines on a map, or of making provision for administration from Norfolk Island or some other place. We have to show that we have acquired the area, that we have taken physical possession of it and are developing it. Then I believe that our title will be absolutely watertight for the future. 1 support the Bill and commend it to the Senate.
– in reply- I think all members of the Senate would like to extend congratulations to those honourable senators who have contributed to this debate, particularly to Senator Greenwood whose speech revealed such wide and deep research. I think, too, that the advocacy of Senator Cant and Senator Lawrie on the general subject of mapping and scientific investigation in these waters was welcomed by the Senate. However, of course, we must not become over enthusiastic, I suggest, merely on the statement of the proposition, because there are tremendous difficulties involved and the financial dimensions of the effort are considerable. By way of preliminary remarks I want to say that I noted with appreciation the reference made by Senator Cant to article 5 of the Convention on the Continental Shelf. This reminded us, if we needed any reminder, of the obligation on those who exploit the continental shelf to conserve the living resources of the sea and not to allow any interference with the fundamental oceanographic or scientific research carried out with the intention of open publication.
The second point I wish to make, according to the sequence of logic which appeals to me, relates to the method of acquisition exercised by the Commonwealth in putting forward this enactment. This subject was adverted to by Senator Greenwood. Pertinently, he drew attention to the fact that in the second reading speech the acts of sovereignty asserted by the Commonwealth are enumerated. The Commonwealth, having become a nation for this purpose - as Sir Garfield Barwick said in a recent decision which has been quoted by all honourable senators, I think - since the passing of the Statute of Westminister, is entitled to acquire, at least in its own right, whatever territory it thinks fit. This is recognised in section 122 of the Constitution.
The third thing that Senator Greenwood mentioned is that this act of acquisition was carried out apparently without reference to Great Britain. As to the islands between 154 and 158 degrees of longitude - that is to say, the area in the second part of the preamble - the Commonwealth Government relies upon its own act of sovereignty to found an Australian title. The United Kingdom did not claim to be sovereign of those islands. In an exchange of notes the United Kingdom Government recorded that it does not claim any right or interest in the islands and it recognised that Her Majesty’s sovereignty over them, and effective government and administration over them, is exercised by the Australian Government.
– Would the Minister care to say why there are two preambles designating the islands?
– Yes. The first preamble relates to that area of the Coral Sea Territory to which claim has been made by the State of New South Wales. The second part relates to that part of the Coral Sea Territory to which no such claim has been made. This leads me to my next point. I wish to state simply, as a matter of fact, following upon the reference made by Senator Greenwood, that the State of New South Wales has said that the islands in the area dealt with in the first part of the preamble are claimed by New South Wales.
This brings me to the matter of real concern raised by all honourable senators who have spoken on this subject. I refer to the actual overlap of the area within the boundary lines mentioned in the Bill as Coral Sea Territory, including the islands within that boundary, and the adjacent area of the Territory of Papua and New Guinea as well as the adjacent area of Queensland for the purpose of the petroleum off-shore oil legislation. It is quite true that there is an overlap, but it is wrong to infer from that that there is any conflict between the contents of this Bill and the rights of Papua and New Guinea in relation to off-shore resources of the sea bed, including oil. I remind honourable senators that in my second reading speech on this Bill I specifically stated:
When the Petroleum (Submerged Lands) Act was introduced into Parliament in 1967 the Minister for National Development (Mr Fairbairn) foreshadowed that at a later stage the offshore petroleum legislation would be extended to these islands in the Coral Sea and to their adjacent submerged lands. This will be the subject of a separate Bill.
The reason why there is no conflict between this Bill and the other Bill is that this Bill deals with islands, dry land, in the Coral Sea area, whereas the Petroleum (Submerged Lands) Bill deals with oil resources under the sea bed, submerged land. To show further that any possible conflict has been taken into account, I refer to the second reading speech of the then Minister for Supply (Senator Henty) on the Petroleum (Submerged Lands) Bill 1967, at page 2136 of Hansard. The honourable senator said:
While dealing with adjacent areas I should make brief mention of certain agreements which have been reached in relation to the adjacent areas of Queensland and Papua and to some small islands and their continental shelves in the Coral Sea. Prior to the commencement of these negotiations between the Commonwealth and the States, Queensland and Papua had issued adjoining exploration permits with boundaries conforming to the boundary between Queensland and Papua. These permits have been accepted by the companies in good faith and work has been going on in the areas concerned.
When it became necessary to consider these boundaries from the point of view of this joint legislation it was found that the application as between Australia and Papua of the median line principle would have resulted in part of one permit and something like half of another permit which had been issued by Papua being brought under the jurisdiction of Queensland thus resulting in a reduction of the area of continental shelf under the authority of the Territory.
I want Senator Cant to be satisfied about this. If the median line principle had been applied, it would have resulted in Papua being deprived of part of one oil permit which it had issued and almost half of another permit which it had issued.
– Was there an exchange between the two governments?
– No, not an exchange. Senator Henty continued:
The Government considered that any transfer of part of these titles back to Australia - no matter how justifiable in terms of logic - might be misunderstood in Papua and New Guinea and in any case that such action would be inconsistent with the high sense of responsibility which Australia displays in working to bring this Territory towards self government.
The median line principle was varied in favour of Papua and the line was brought further south and closer to Queensland so that Papua could retain that area of the sea bed in relation to which it had issued at least two permits already. Senator Henty went on to say:
I should also mention that at a later stage the Commonwealth proposes that this offshore legislation will be extended to islands in the Coral Sea west of 158 degrees east longitude and to their adjacent submerged lands. We have advised the Queensland Government that when this is done arrangements will be made for the administration of the offshore petroleum legislation in this area to be dealt with by Queensland and for Queensland to receive the same proportion of any revenue as the State would receive in respect of its own adjacent area.
It is not a case of the Commonwealth divesting itself of land within its Territory; it is a case of the administration of the submerged lands - by arrangement - being given to the Designated Authority in Queensland. I will not anticipate what might be considered as to the arrangement when we have the benefit of the report of the Senate Select Committee on Off-shore Petroleum Resources. I am obliged to the Senate for its consideration of the Bill.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Sitting suspended from 5.43 to 8 p.m.
– I ask leave to read a statement that was made by the Minister for Education and Science with regard to the 1970-72 triennial programmes for universities research grants and colleges of advanced education.
The ACTING DEPUTY PRESIDENT (Senator Dame Ivy Wedgwood) - Is leave granted?
Opposition senators - No.
The ACTING DEPUTY PRESIDENT - Leave is not granted.
– For the information of honourable senators, I present the following papers:
Reports of the Australian Research Grants Committee, 1967-69.
Report of the Australian Universities Commission, May 1969.
Report of the Commonwealth Advisory Committee on Advanced Education second report, 1970-72.
Copy of the statement of the Minister for Education and Science.
I leave the Opposition to their ignorance.
– I rise to order. I think the concluding words used by the Minister - that he leaves the Opposition to their ignorance - were most unbecoming. I ask that those words be withdrawn. They are a reflection on honourable senators and I do think that he should withdraw them in deference to the standing customs of this chamber.
– If the request had any standing of behaviour, I would; but not so.
– I think that the Minister has compounded the offence. He is making it personal now. I personally take exception to his remarks and I ask him to withdraw both remarks. I demand it.
– I wish to point out that Senator O’Byrne is using a form of argument which he constantly uses by making himself first the accuser in the most short or elaborate terms according to the inclination that fills him at the time and secondly appointing himself as adjudicator or judge to make judgment on the allegations he makes. Whether or not the Minister appropriately used the words in the context, 1 consider that it is within his capacity as it is within the capacity of any honourable senator sitting in this place, to make the observation that fills the bill. I suggest the honourable senator who made the observation was perfectly entitled to do so and that you should not uphold the objection of Senator O’Byrne.
– The remark was offensive. Objection was taken to it.
– What remark?
– The remark that he left it to their ignorance. A further personal remark about the standing of Senator O’Byrne was also offensive. Objection has been taken to them and they should be withdrawn.
– In all truth, the suggestion by the Leader of the Opposition that the use of the word ‘ignorance’ is out of order and unparliamentary-
– What else is it?
– The standard one has to take as a guide here is what normally takes place in debate. I suggest that it was a general observation. It was not directed to Senator O’Byrne any more than to anybody else. Quite frankly, if that is to be regarded as out of order, I would say we all had better get into cotton wool.
The ACTING DEPUTY PRESIDENT - Senator Wright, I ask you to withdraw the remark.
– Regretfully, Madam Acting Deputy President, in deference to your request, I withdraw it
Debate resumed from 19 August (vide page 130), on motion by Senator McKellar
That the Bill be now read a second time.
– The Bill under consideration, the Meat Industry Bill, has quite a long title. The debate obviously must be restricted to the matters mentioned in that title. They are the membership of the Australian Meat Board and some specific functions of that Board. The first proposal in the Bill is to increase the number of producers’ representatives on the Board from five to six. A further proposal seeks, to give the Board authority, from the passing of this measure, to grant, cancel or suspend a licence for export. This power was previously in the hands of the Minister. I and the Opposition think that both these proposals are good in themselves.
As explained by the Minister, the reason for increasing the number of members is to give producers more representation on the Board, and it is designed specifically to cover the southern States of Victoria, South Australia and Tasmania. The grounds for making this alteration are quite substantial when one realises that Victoria alone, in terms of tonnage, is the second largest exporter of meat from Australia. Victoria and the other two States between them produce 35% of all the meat exported from Australia. I think that is about the best way to view the situation. In another place I think the Bill was considered from the point of view of the number of stock, both sheep and cattle, held in the various States. Even on this basis the proportion held by the three States I have mentioned is quite considerable. It is not as high as the proportion of the total amount of meat exported, but, between them, the States of Victoria, South Australia and Tasmania hold 32% of the total number of cattle in Australia and 20% of the total number of sheep. In these circumstances, the proposed increase in the number of producers’ representatives is acceptable to the Opposition.
The proposal to vary the functions of the Board is acceptable to us except that we have some reservations about the position that arises when some company is not satisfied with either the granting, the suspension or the cancellation of a licence. Such a company may refer the matter directly to the Minister and the Minister then has power to determine whether the granting, suspension or cancellation should be upheld or varied. I emphasise that this power is vested in one person. But we are not going to press that issue.
When we are discussing the Bill in Committee I propose to move an amendment which is in line with that which was moved in another place to increase the membership of the Board even further. Here I draw the attention of honourable senators to the fact that the Board was set up originally in 1935 under the Meat Export Control Act. It functioned in this manner until 1964. In 1964 the membership of the Board was reduced from twelve to nine. The Bill before the Senate proposes that the membership be increased from nine to ten. The additional representative will represent the meat producers. That will mean that there will be six meat producer representatives on the Board. The number of other representatives will remain the same. The Board will then be comprised of meat producer representatives, a representative of the Commonwealth, the Chairman of the Board, and two representatives of the exporters, making a total of ten.
At the Committee stage I will move an amendment proposing that the membership of the Board revert to the position which obtained up until 1953, 1 think it was, when a representative of the employees working in an export abattoir was on the Board as well as a representative of the publiclyowned abattoirs engaged in the export industry. The reason for wanting to include these two additional representatives is fairly obvious. The employees’ representative on the Board was of considerable value to it. Such a representative would be in direct contact with those who were producing meat suitable for export and therefore would be in a position to make suggestions in regard to hygiene and the correct treatment and presentation of carcasses. He would be of considerable value to the Board. As I have said, there was a position on the Board for such a person for a number of years. We feel that another such position should be created. The appointee would be very valuable to the industry. The employees and the publicly-owned abattoirs engaged in the export industry should be represented on the Board because this is a period when we are finding difficulty in obtaining full value for our exports. We are battling to do so. A very serious situation arose at the end of last year with regard to our quota for meat exports to the United States. Nothing should inhibit the Board from presenting the best quality meat and obtaining the most satisfactory trade arrangements.
A few months ago a comparison between our trading arrangements and those of New Zealand or the Singapore market was brought to my attention. New Zealand has prepared a remarkable brochure on meat for the Singaporean butchers. The thing that struck me most was the way in which New
Zealand presents its meat, lt is absolutely in line with the brochure supplied to the trade. Australian lamb is available in Singapore. It is nicely parcelled but I noticed that on the outside of one leg of lamb was stamped ‘lamb - 9i lb’. The Singaporeans were astounded at its size; it was much too big for their normal requirements. New Zealand’s lamb was being sold because the New Zealand legs of lamb were between 4i lb and 4i lb. They were a much more attractive proposition to the Singaporeans. This is the sort of thing that the export authority should be interested in. It should see that the best value possible is obtained from the presentation of the meat in overseas markets.
I do not wish to take the debate any further. The Opposition has only two matters to put - representation on the Board and the Board’s functions. 1 will leave the matter as it stands. The Opposition supports the Bill, but at the Committee stage I will move an amendment in regard to the membership of the Board.
– I support the Bill and I will oppose the amendment that Senator Wilkinson has advised the Senate he proposes to move during the Committee stage. 1 would like to go back a little way into the history of the Australian Meat Board. As has already been stated, the Bill has two purposes: Firstly, it provides for an increase in the number of producer representatives on the Board and this I support. Secondly, it empowers the Board to issue, cancel or suspend export licences. Under the present legislation the Board considers the issuance, suspension or cancellation of export licences and makes a recommendation to the Minister for Primary Industry. The Minister then deals with the recommendation. There is no right of appeal. Under the new legislation the Board will have the power to issue, suspend or cancel export licences but if an exporter wishes to appeal he will have the right to ask the Minister to re-open his case. The Minister will then act as he thinks fit. I think this amendment is very good.
Prior to 1964 the membership of the Board was greater than it is at present. At that time the Board represented particular categories of the meat industry, such as beef, lamb, mutton, pig meats and so on. lt should be remembered that the recommendation for the reconstitution of the Meat Board came direct from the producer organisations and had the full support of these organisations. Under the revised setup the producer organisations nominate their representatives to the Minister. However, they do not nominate people representing particular areas of the industry. The producer members represent all sections of the meat industry. As the Board is considered to be a business undertaking it was thought that it would be far better to adopt this method than to follow the old method.
When the Meat Board was to be reconstituted a selection committee was formed. The Australian Woolgrowers and Graziers Council nominated four grower representatives, the Wool and Meat Producers Federation nominated four representatives and an independent chairman was appointed by the representatives of both organisations. The Minister considered the nominations of this selection committee and made appointments to the Australian Meat Board. Because at that stage, particularly, the export of beef from Queensland was of tremendous importance and represented a large percentage of Australia’s export of meat: it was only natural that Queensland had greater representation on the Board than perhaps some other States. It is as well to remember that this is an export board dealing with meat for export. Because the members of the Board had, in the opinion of the growers organisations and apparently also in the opinion of the Minister, done a good job up to that stage it was only natural that most of them would be reappointed to the Board. As a consequence the Board was composed of 2 members from Queensland, 2 from New South Wales and 1 from Western Australia, which unfortunately left out representation of the south eastern States. The purpose of this Bill is to correct that situation.
It is hoped that this measure will enable somebody from the south eastern quarter of Australia to be appointed to the Board. I think we should bear in mind that the principle has been to appoint to the Meat Board men having the right qualifications, rather than ro appoint men to represent specific areas. When the Meat Industry Act ls altered I am quite sure that we will have representation of the southern States and a greater overall representation of Australia.
I propose to state for the benefit of honourable senators the figures for exports from the various States last year when Australia’s total export of meat was 397,000 tons. I shall state the figures in thousands of tons only. The total of 397,000 tons was made up of 163,000 tons from Queensland, 109,000 tons from Victoria, 53,000 tons from New South Wales, 45,000 tons from Western Australia, 9,000 tons from South Australia, 10,000 tons from Tasmania and 6,000 tons from the Northern Territory. It will be seen from those figures that a great quantity of our exports of meat, particularly beef, comes from Queensland. It is also well to remember that in the year which ended on 30th June 1969, 147,000 tons of the 262,000 tons of beef exported from Australia came from Queensland. That was beef only. Those figures relate to all meats and they show the States from which the meat comes.
As I have said, although I agree that at the present time States in south eastern Australia should have representation on the Australian Meat Board, I do not think we should regard them as having necessarily a geographic qualification for appointment to the Board. Rather, I believe that qualified men should be appointed, irrespective of where they come from. I know that the selection committee would have in mind their geographic location, but I believe also that qualifications and ability should be the basis of appointment. I come now to the amendment which the Opposition proposes to move. I oppose completely this move by the Opposition to have representatives of employees appointed to the Board. We must remember that this is a meat export board which is financed entirely by the growers. Therefore, even for that reason alone, I do not believe that employees should be represented.
– It is financed also by the workers through the taxes that they pay. The industry is subsidised.
– The Board is financed by a levy on growers and on nobody else. Last year the growers contributed $935,000 by way of levy. The only other revenue coming to the Board is from interest on investment. Therefore I say emphatically that representation of employees on the Board would be impracticable and improper in this situation. I shall strongly oppose the amendment and I am quite sure that the Senate will oppose it.
Under an earlier set-up employees were represented on the Board, but the Board was unwieldy because there was representation also of the various categories of meat, such as pig meats, lamb, mutton and beef. In addition there was representation of other interests. The Board was too big and one of the main reasons for reconstituting it was to make it more compact and able to do a better job of looking after the exports of meat from Australia and in dealing with other questions relating to meat. For the reasons I have given I strongly support the alterations to the Board proposed in the Bill, believing that they will provide better representation for growers, and I oppose strongly the amendment which is proposed by the Opposition.
– The Australian Democratic Labor Party supports this small Bill which is intended to correct a situation which exists under the present legislation rather than to create an entirely new set-up and a new concept. All honourable senators have agreed that the Australian Meat Board has operated sucess.fully. This legislation sets out to correct the apparent anomaly of geographic representation of growers which apparently has developed over the years because of increased production in the southern States which hitherto have not been represented on the Board. This very short and simple Bill is not designed to alter the concept of the Board which has functioned so successfully, as has been said by all honourable senators who have spoken so far, but is designed to leave the Board precisely as it is with the addition only of representation from the States which so far have not been represented. Obviously the production of meat in these States now entitles them to representation if they are to be kept in touch with what is going on in the industry. It will enable the growers in these States to have their views put to the Board.
The only other question dealt with by the legislation is one which I believe will have the approval of everyone. Although some people may not agree that the Minister for
Primary Industry is the right person to whom people may appeal against decisions of the Board with respect to export licences, it appears obvious at the moment that the Minister has no choice other than to rule in accordance with a recommendation of the Board, the effect being that there is nobody to whom people can appeal. I suggest that any improvement is desirable. The Bill sets out to change this aspect and we feel that that is a good thing. Under this proposal an aggrieved person will be able to appeal to the Minister and the Board will be required to shoulder responsibility for its own decisions, whereas previously the Board was in the position where it made a decision and the Minister was obliged to carry the responsibility because he and he alone administered the grant of licences. We believe that these are worthwhile reforms which will assist a board which already functions successfully to do its job even more successfully. At this stage it is our intention to oppose the amendment proposed by the Opposition. We feel that the amendment, if carried, would widen the whole purpose of the Bill and virtually change the principles under which the Board has been operating so successfully. We do not feel that that would be. a good thing at this stage.
– I want to be brief on this matter and state at the outset that I oppose the proposed amendment and support the Bill. The Government has been wise in its choice of members of the Australian Meat Board. The Australian Meat Board has the respect and confidence of all the people and organisations with whom it deals. Under the set up proposed in this Bill the Board must take the responsibility of making decisions to grant or refuse licences, and of making conditions concerning those licences as it has done in the past. It has made recommendations to the Minister and the Minister, as has already been explained, has usually adopted the Board’s recommendations. Now the Board must accept the responsibility. If any applicant feels aggrieved with a decision of the Board he has the right to appeal to the Minister.
The proposal is for an increase of one in the membership of the Board, more or less on the basis of giving representation to the three south-eastern States which have not been represented on the Board for some time. We support that proposal. The amendment proposed by Senator Wilkinson seeks to have added to the membership of the Board a representative of a public abattoir. Public abattoirs have no direct interest in selling meat overseas. I emphasise the word ‘direct’. Public abattoirs provide a service for operators. Those operators are already represented on the Board through the representatives of meat exporters. I believe that no good purpose would be served by enlarging the Board to include representatives of public abattoirs. They have no direct interest in the export of meat.
Senator Wilkinson’s amendment also envisages the appointment of a representative of employees in the meat industry. I do not think any benefit could be achieved if that suggestion were adopted. The Board is grower controlled and operated and is financed by a levy on meat exporters, the people who make the deals and control exports to overseas markets. For the reasons I have stated I oppose the amendment and support the Bill.
– 1 support the amendment proposed by my colleague Senator Wilkinson. Before I deal in detail with the cattle industry in Australia I wish to quote briefly from the Minister’s second reading speech. He said:
The increase in the number of producer representatives on the Board is proposed so as to facilitate a more adequate representation of the major livestock producing regions of Australia and of the widely differing conditions under which cattle, sheep and lambs are produced. In particular, an additional producer representative should assure representation for producers in the southern States. Since the Board was reconstituted in 1964 there has been no meat producer representative from Victoria, South Australia or Tasmania despite the fact that these States account for a very considerable proportion of Australian meat production and exports.
In fact, the only major meat producing State of the three named by the Minister is Victoria.
– What about Queensland?
– The honourable senator should wait until I get around to Queensland. He made a conservative speech a litttle while ago that was shocking to anybody listening to it. I will make my own speech without his inexperienced assistance.
Now Senator Buttfield is interjecting. Littie by little I will also get around to her. Clause (c) of the amendment proposed by Senator Wilkinson provides:
I believe that the amendment moved by the Opposition is perfectly reasonable in seeking to give a voice on the Australian Meat Board to the people detailed in the amendment. The Government has mishandled the beef industry in Australia to the extent that conceivably it could become a bankrupt primary industry within the foreseeable future. Tens of thousands of people are involved in the meat industry, from the producing to the processing sections. By far the greatest numbers are employed by meat exporters and retail butchers’ shops. The livelihood of many thousands of Australians depends on this very important industry. I am amazed that the Government has adopted the short sighted attitude of refusing to give them some sort of representation on the Board. Honourable senators will recall that some months ago, shortly after restrictions were placed by the United States of America on beef exports from Australia, I raised this subject during the debate on a Bill. The Minister for Repatriation (Senator McKellar) who represents the Minister for Primary Industry (Mr Anthony) in the Senate, on that occasion said: ‘Of course the price of meat has gone down. I sometimes buy meat for my family.’ That may not be an exact quotation. I may have left out a comma or a full stop. Nevertheless the reduced prices did not operate for very long. Any decrease in the price of meat to the consumer as a result of the restrictions on meat exports lasted only a very short period. Today the price of meat is again forcing it off the table of the great majority of Australian families.
Let us take a quick glance at some production figures. In March 1968 - the latest figure available - the cattle population of Australia was 19.2 million. In some areas since that time it is probable that severe drought conditions have slightly reduced that figure, although the balance may have been restored in other parts of Australia that have enjoyed improved weather conditions. In 1966-67 we exported to the United States about 185,000 tons of meat, or 72% of our total meat exports. At that time I was critical of the fact that we had to put, as it were, all our beef in one basket. That procedure was consistent with the shortsightedness of the Government in planning export markets, not only for beef, but also for many other primary products. We get one lucrative market and we stick with it, just like the slogan in the good old ‘Mortein’ advertisement: ‘When you are on a good thing, stick to it.’ But nobody ever looks around carefully to see what might go wrong.
In 1967-68 we did worse than in 1966-67. We increased our exports to the United States by a further 6%. In that year we exported to the United States 197,000 tons of meat, or 78% of our total meat exports. At one time the United Kingdom market was the backbone of the Australian beef industry, but because our meat was downgraded and all sorts of false labels were used we were able to build up a market in the United States. But we greatly reduced our sales on the United Kingdom market. For the last financial year our total meat exports to the United Kingdom amounted to only 25,000 tons. Japan took about 12,000 tons in the same period, or about half of our exports of meat to the United Kingdom. Meat exports to Japan are subject to a quota system. There is anxiety in the beef trade to build up our exports to Japan. Over the same period domestic consumption amounted to 483,000 tons. For 1967-68 our domestic consumption of meat per capita rose to 97 lb, as against 84lb in the previous year. But this is still a long way below the per capita consumption of 10 or 15 years ago. I will cite those figures in a moment.
In 1964-65 our total slaughtering was 6.8 million head of cattle; in 1967-68 we slaughtered only 5.7 million head. I am particularly interested in this subject because the beef industry means a lot to Queensland.
– It’s a pity that you do not learn something about it.
– You probably know no more about the industry than you do about the crummy chops you had on your breakfast plate. If our Liberal and Country League senator from South Australia is to give advice freely across the chamber he should learn at least the basic facts of the beef industry. The people who live on the exports of wheat to China would know little about beef. Queensland’s exports in 1967-68 amounted to 131,000 tons, so the export quota from Queensland was the biggest of any State in Australia. In New South Wales the quota was 34,000 tons, and of the three new States to get representation, Victoria was the biggest exporter with 55,000 tons. The Australian domestic market takes 54% of the national annual output. This is a considerable reduction on what it was 14 or 15 years ago when the Australian domestic market took 65% of our total production.
In 1956-57 a record level was reached in Australian consumption. This tallies with the figures I quoted a moment ago. Since then there has been a decline in Australian consumption of some 12%, the reason being that the price of beef generally has taken it off the average worker’s plate. The person who lives on the basic wage, the artisan’s wage, the white collar worker’s wage or the pension is rarely able today to buy a decent piece of steak simply because he cannot afford it.
– There has been an increase in the consumption of chickens.
– It is a wonder they did not carve you up with the sausages long ago. As I have mentioned, the price of beef has forced it out of the area of consumption of the average Australian who would eat more beef if he could afford it. If we are to lose our American markets, as appears to be likely eventually, the consumption price to Australians must be lowered in some way or other. On 25th March 1969 the Chairman of the Australian Meat Board thought the situation in the beef industry was so serious that he called for international talks on the world beef situation. His statement was published in the Sydney ‘Daily Telegraph’ of the following day, 26th March. I shall read only parts of the statement because I believe that they have a particular bearing on the matter under discussion. The newspaper article states:
The Chairman of the Australian Meat Board (Mr Shute) yesterday called for international talks on the world beef situation , . . The future of the industry in the big beef producing countries such as Australia, New Zealand and Argentine was still obscure.
On one hand lt is claimed the world Is facing serious food shortages’, he said. ‘Still countries capable of assisting to alleviate the situation are not able to secure economic returns for vital food products.
We are tired of hearing political and social leaders saying the world will be short of beef in the foreseeable future. If this is so, surely no time must be lost in facing up to the anomalies militating against economic production and freer marketing’.
He said the first real step should be the resumption of international discussions designed to deal more effectively with exportable surpluses.
We are asking the Government - I think it is a very simple request - to give to the people employed in the industry in public abattoirs and freezing works the right to enter into these discussions.
Now let us look at the American market. This is the aspect which activates the mind of every beef producer in this country. Estimates of meat imports from all sources in the United States of America during 1969 are 1,039 million lb. It is expected that Australia will supply 505 million lb for the year, an increase of 22 million lb over 1968. In a moment I shall read some of the words which were uttered by the Minister in January this year, but before doing so I think I should remind honourable senators that when quotas were placed on the export of beef last year we were told by representatives of the United States and by representatives of the Department of Primary Industry in Australia that there would be no quotas for 1969. What has happened? We have had once again to place a so-called voluntary restriction on the amount of beef we can export to America. The ‘Meat Producer and Exporter’ of January 1969 carries the following article about this matter:
Mr Anthony said, ‘The Australian Government is disappointed that Australia’s share is not higher. Despite strenuous negotiations with the US, the level to which Australia has agreed to restrain is the best that could be arrived at but does not adequately reflect the Australian share of that market over the past several years’.
Mr Anthony pointed out that one if the aims of the diversification scheme, introduced by the Australian Meat Board in October 1968, was to allow exports of Australian meat to the US to be regulated should this be necessary at some future time.
This was after the panic buttons had been pressed. At that time it was thought that there would be no restriction of exports to the United States this year. In fact that was not borne out. The article goes on:
The need to regulate shipments, as in 1968, had now been confirmed. The diversification scheme would require exporters to take full advantage of other markets in order to participate in sales to the USA, but it would also ensure that Australia’s share of US imports in 1969 would be regulated throughout the year and be supplied in full.
The article contains another statement by Mr Shute which I think is worth incorporating in my remarks. It is as follows:
Mr J. L. Shute, Chairman of the Australian Meat Board, said that although the 505 million lb Australian share of US imports for 1969 was below the quantity which would have been shipped without restraint, ‘nevertheless it will be advantageous for Australian exporters to know the quantity of meat that can be shipped to USA during 1969 under current quota arrangements.
The diversification scheme initiated by the Australian Meat Board and which became operative from November 1, 1968, was designed to promote stability within the industry’.
It this was designed to promote stability it is significant that the Minister and the Australian Meat Board, after the panic measures of last year had been taken, said: ‘Well, exporters now have to find other areas in which to market their beef. A fixed percentage of their production had to be sold on the domestic market before they would be able to sell to other countries.
The Labor Party has said continually that it is the responsibility of the Commonwealth Government to initiate marketing research, to look for areas in which our exports can be disposed of, and as beef is such an important export to the Australian economy this is a matter to which the Government should devote a fair amount of its energy. But after a year or more we have reached a situation where we are likely to have the same problems in relation to the American market as we had previously. Whether we sell 70%, 72% or 78% of our total production is not particularly relevant. The relevant point is that we should be planning for it.
I am amazed at the honourable senators who have participated in the debate this evening opposing the amendment moved by my colleague, Senator Wilkinson. First of all Senator Bull told us of the terrible things which were happening in the industry and of the even more terrible things which would happen if employees or representatives of publicly owned abattoirs were added to the Australian Meat Board. He was closely followed by Senator Little. 1 can understand Senator Little’s attitude. He is in a cleft stick because unless the Democratic Labor Party supports the Government in its moment of crisis the DLP will not even have campaign funds. So he was not speaking from his heart; he was speaking for political expediency and he had nowhere else to go.
Then we heard from Senator Lawrie who was carried away by the danger of this apparently Socialist innovation in relation to the membership of the Australian Meat Board. As an activist in the cattle industry he was speaking probably from the point of view of the plain economics of his own grazing property. Nevertheless, regardless of the opposition to the amendment which has been moved by Senator Wilkinson 1 strongly advocate that honourable senators opposite have second thoughts and support it.
– I have listened with some interest to Senator Wilkinson who led for the Opposition and to Senator Little of the Democratic Labor Party in relation to a part of the Bill with which I am concerned. To deal, first of all, with the amendment which has been moved I simply indicate that, to my mind, no case has been made out as to why that amendment should be supported and I do not support it.
– It has not been moved.
– When it is moved I do not intend to support it. At the moment, I do not see the merit in what Senator Wilkinson has said. But there is another matter which be mentioned and which Senator Little mentioned indirectly. This concerns licensing and the question of appeal from the decision of the Board to a decision of the Minister. At the moment, section 29 (7.) of the Meat Industry Act provides:
Where the Minister is satisfied after report from the Board that a person who holds a licence granted or to be deemed to be granted under (his section has contravened or failed to comply with a condition or restriction . . .
In those circumstances the Minister may then cancel the licence. There is a similar type of provision in relation to the granting of licences. It has been very properly proposed that this should be altered. In the second reading speech by the Minister we were told:
Currently applications for export licences are made to the Board which, after obtaining such further information as it considers necessary, makes its recommendation to the Minister. The decision to grant or refuse a licence however rests solely with the Minister or his delegate and there is no provision for appeal against that decision. Similarly the Minister may cancel an export licence if, on a report from the Board, he is satisfied that the licensee has contravened a requirement prescribed by regulation or a condition to which the licence is subject. In both instances the Minister must in practice rely heavily on the report and recommendation of the Board but must take the sole responsibility for the decision and in neither case is there any provision for appeal.
The proposed changes would require the Board to take responsibility for its decisions and would also ensure that any applicant who is refused a licence, or any licensee who has his licence suspended or cancelled, has full opportunity to present his case to the Minister for review. The Bill also provides that the Minister may, if he considers it desirable, appoint independent persons to examine any appeal and to make a recommendation to him.
I would agree that that is an improvement but I do not think that it goes far enough. I agree with Senator Little that it would be desirable to see even greater improvement. He said that by implication, as I gathered. It must be, I consider, demonstrated to be essential that for the proper administration of government the right of appeal should be taken away from the judiciary and left with the executive. In this case I wonder why a Minister should be placed in the position of having the final decision. The principle is a basic principle which has been expounded many times by many people. The review of decisions of statutory boards and tribunals should be the function of the judiciary and not the function of the executive, except where there are special provisions such as huge numbers of decisions to be made.
One example which comes to mind is perhaps the granting of scholarships. One could not expect an appeal to a court from every granting of a scholarship under the scholarships assistance scheme. But where you have a licensing scheme, where it means a great deal to people, where it may involve the employment of hundreds of workers, where it may involve the employment of many thousands or hundreds of thousands of dollars of capital, I consider that there is a very strong case for giving the right to the licensee or applicant to appeal to a judicial tribunal and not to an executive officer against a decision of the executive. In support of what I say I would like to refer to the report of the Committee on Administrative Tribunals and Inquiries in the United Kingdom, which presented a report in July 1967. On page 5 of that report the Committee stated in relation to administration generally:
It was necessary not only to be efficient in the sense that the objectives of policy are securely attained without delay. It must also satisfy the general body of citizens that it is proceeding with reasonable regard to the balance between the public interest which it promotes and the private interest which it disturbs. Parliament has, we infer, intended in relation to the subject matter of our terms of reference that the further decisions or, as they may rightly be termed in this context, adjudications must be acceptable as having been properly made.
It goes on:
It is natural that Parliament should have taken this view of what constitutes good administration. In this country government rests fundamentally upon the consent of the governed. The general acceptability of these adjudications is one of the vital elements in sustaining that consent.
In relation to the situation in Australia I fail to see where any different general principles could be said to apply. Turning to page 9 of the same report we find stated:
As a matter of general principle we are firmly of the opinion that a decision should be entrusted to a court rather than to a tribunal in the absence of special considerations which make a tribunal more suitable.
Here in relation to the small number of licences which are granted and the very large extent of the interests which are concerned with the licences, I would need to have shown to me very considerable reason why there should not be what was considered desirable by the committee in the United Kingdom, that is, the right to appeal to a court. I refer also to page 25 of the same report, which states in paragraph 104:
The existence of a right of appeal is salutary and makes for right adjudication. Provision for appeal is also important if decisions are to show reasonable consistency. Finally, the system of adjudication can hardly fail to appear fair to the applicant if he knows that he will normally be allowed two attempts to convince the independent bodies of the soundness of his case.
One can but pause to wonder why should not an applicant for a licence or a licence holder have that right in Australia. Halsbury’s ‘Laws of England’, Third Edition, Volume 9, states at page 580:
The general principle is that no appeal lies from the decision of a tribunal, whether statutory or domestic, unless in the former case some enactment and in the latter case the rules of the particular body concerned specially provide for an appeal to an appellate tribunal. If a statute confers this right of appeal the right cannot in any way be destroyed by the lower tribunal. 1 simply cite that to refer to the fact that here, unless the right is specifically given in the legislation an applicant would not, except in the most exceptionable circumstances perhaps, have any right of appeal to a judicial tribunal. For those reasons I foreshadow my intention to move an amendment to the Bill by adding after proposed new sub-section (7c.) of section 29 the following provision: (7d.) Where an application has been refused or a licence has been cancelled and the applicant ot person who held the cancelled licence is aggrieved by the refusal or cancellation the applicant or licence holder may within 14 days of the notification of such refusal or cancellation appeal therefrom to a judge of the Supreme Court of a State or Territory of the Commonwealth of Australia.
– I rise to speak in support of the amendment that has been foreshadowed by Senator Wilkinson. I base my support on the proposal to make the Australian Meat Board responsible for the issue, cancellation or suspension of export licences, etc.
It is obvious that the Board, with its new representation, has its hand on the throttle of the industry. I do not object to that in the broad sense. Earlier Senator Bull made the point that, if the amendment that the Opposition is sponsoring was accepted and one member was appointed to represent the publicly owned abattoirs and freezing works and one member was appointed to represent the employees engaged in the industry, in effect, they would be free riders. I think the figure that he quoted as the levy on the growers for the upkeep of the Board was $935.
– No, $935,000.
– If we work on the figure Senator Bull has given me by interjection, I question whether the publicly owned abattoirs have ever been asked whether they would make a contribution to the operating cost of the new Board assuming that they were given representation. As far as trade union representation is concerned, it is obvious that when the Board lays down, as it does, certain standards and conditions or new techniques to meet the American and other overseas markets, some of them bring in their train certain objections and fears on the part of the employees as a whole. In some of the decisions that the Board makes it is penny wise but pound foolish, and closer consultation with the publicly owned abattoirs and the employees would probably pay off in avoiding industrial misunderstandings.
If the amendment were accepted there would be a Board of eight members. There would be only two votes representing nonproducers, for want of a better term, against six other votes. I know that Senator Bull has had a long experience in the industry. But some of us city folk are not completely unaware of personalities in the industry. I think he would agree with me that the people who operate the Homebush abattoir - the members of the Metropolitan Meat Industry Board - are seasoned and experienced administrators. The federal officers of the Australasian Meat Industry Employees Union - people of the calibre of Federal President Taylor and Federal Secretary Hall - have had a long experience in the industry. I think it will be agreed that the future of their members is bound up with a buoyant industry. It is on that basis that we members of the Opposition believe that this fusion should take place.
What we are suggesting is nothing radical. There is no need for me to reiterate the fact that none of the possible representatives of the publicly owned abattoirs or the trade union happens to be a wild eyed anarchist. 1 was a little disappointed with Senator Little’s contribution because I know that he has some contact with people on the Melbourne Trades Hall Council.
– I am not very close lo the Meat Industry Employees Union.
– No, but one does not necessarily judge a union by its secretary. If the honourable senator consulted the rank and file members of the Union in every State he would find that they feel that there is a certain stigma attached to them because representation is being denied to them. The honourable senator has been overseas on a number of occasions. He knows as well as I do that what we are suggesting - partnership in industry - has been a regular feature of the West German industrial setup and is a regular feature of the Scandinavian structure. On other occasions people from the Treasury are not averse to quoting to us productivity figures showing what happens in Scandinavia and West Germany.
What we are suggesting is not nationalisation of the industry; it is simply reasonable representation so that views can be expounded. As Senator O’Byrne said by way of interjection, we have never said and we do not say now that we want to prostitute this authority by making it into a wage fixing tribunal. All honourable senators know that many industrial disputes have nothing to do with wages but have something to do with changed conditions. I say in all sincerity that some of us here have even experienced this. I am not blaming the present Meat Board for this. My colleague Senator Devitt is probably more fitted to talk about what happens in country towns when abattoirs are closed down as a result of the introduction of new techniques.
The plain fact of the matter is that we are not making any revolutionary proposal. All honourable senators know that these innovations and market fluctuations take place. On a number of occasions when the Minister for Repatriation (Senator McKellar), who represents the Minister for Primary Industry (Mr Anthony), and I have had our traditional clashes in estimates debates, he has said: ‘We. will call in the union representatives when we want to talk to them’. But that is not the way to go about it.
– The Meat Board has not any jurisdiction in the field of employeremployee relations.
– It deals with standards, which lead indirectly to job conditions.
– You are on the wrong tram.
– No, I am not. If the honourable senator knew the trade union movement well enough over recent years-
– I know it.
– I challenge the honourable senator to ask the officials of the Meat Industry Employees Union in Queensland what they think about this matter. He knows that they are balanced trade union officials.
– It has nothing to do with the Meat Board.
– It is relevant because the honourable senator is trying to justify a particular argument and 1 am countering it. I am referring to the advantages of partnership in industry. I do not question for one minute the vital role of the growers, but I am arguing on the basis of partnership in industry. Obviously Senator Rae has some fears about the powers of the Board. That is another reason why two more people should join the present six. I believe that benefits would flow from it. That is why I support to the hilt Senator Wilkinson’s proposed amendment.
– I have listened with great interest to the debate tonight, particularly the contribution by Senator Keeffe. I was not surprised to hear him speak at great length and do nothing but criticise the Government. He completely overlooked the fact that the Australian Meat Board is responsible to the industry. The Australian Government has representation on the Board. The Minister for Primary Industry appoints the chairman; the Government has one representative; and the rest of the members of the Board are representatives elected by primary industry and appointed by the Minister. But the responsibilities of the Board rest with it and are not the province of the Government. This shows once again that the Government is willing to give people responsibility when they are willing to accept it and to set to work responsibly in order to carry out their functions.
Senator Keeffe offered criticism in relation to the American market. He went on to say that the Government had done nothing about researching and obtaining new overseas markets. Perhaps he would be surprised to know that the Australian Meat Board spends a lot of time every year on goodwill missions to Europe, the Mediterranean area, the United Kingdom, the
United States of America and Canada. It works very closely with our neighbours New Zealand and Japan in developing markets. If people care to look at the increased tonnages that have gone into many of these countries - particularly Canada, Japan and the United States of America - they will see that the Board has gone out and promoted and sold. So I say that Senator Keeffe was completely off the mark when he criticised governments and he was not aware of any facts at all when he had the audacity to criticise the excellent operations and abilities of the Australian Meat Board.
Senator Keeffe went even further. He criticised the price of Australian meats. He criticised the Australian Meat Board for the fact that meat, particularly beef, is too dear for many people to buy. Meat pricing is not a function of the Australian Meat Board. However, I want to go one step further. Perhaps the honourable senator also is critical because, supposedly, producers are getting too much for their meat. That is the only conclusion I could draw from his remarks. Perhaps he should have suggested that the producers should be receiving much less for their stock in order to make cheaper meat available. In the process of criticism of the Australian Meat Board, which has no responsibility for the home market, he also suggested that the producer should get a lot less. Yet in this same chamber we have seen members of the Opposition stand up and, with crocodile tears, plead for the little producers. It is quite pleasing at times, although not amusing, to hear realities come to the surface so far as the thinking of Opposition members is concerned. Some of the thoughts expressed tonight have exposed this. We also have heard criticism about the price for meat on the American market. Again the Australian Meat Board has no control over the price factor in any export market. The Board is the promotional body of the meat industry. Individual exporters have the ability to buy, process and sell according to the export licences issued and it is up to the Australian Meat Board to maintain standards and qualities.
– Standards and qualities?
– Correct, but not prices. Senator Mulvihill did not mention prices but prices were mentioned earlier tonight and that is the matter I am referring to. There has been a lot of criticism about areas of the meat industry. This criticism was based on comments that had been passed. But there were criticisms which were completely unjustified.
The main purpose of this Bill is to increase the membership of the Australian Meat Board by one. The Opposition has foreshadowed that it proposes moving an amendment to increase further the membership of the Board. It might be of interest to the Senate, particularly to members of the Opposition, to know that not many years ago, in 1964, the Australian Meat Board was disbanded at the request of the industry itself. That was not done by direction of the Government. I want to make that point perfectly clear. At that time the industry view was heeded and its representatives were accepted as comprising a responsible body. The industry’s recommendations eventually were accepted by the Government. The old Meat Board consisted of thirteen members.
– How many?
– It had thirteen members.
– It had twelve members.
– We went through this on a previous occasion. There were thirteen members including the Chairman. Later 1 will show the honourable senator the list 1 have, or I will table it. Nevertheless, whether it had twelve members as Senator Wilkinson said, or thirteen members, according to the list I have in front of me, the point is that the industry spokesmen said thai there were too many members and the Board was far too unwieldy. They requested that the size of the Board be cut down so that it would be a very concise and compact committee, able to work far more effectively than the big, unwieldy one had done in the past. In the process of doing this the industry made one further request. It asked for far more responsibility and the Government, fairly and wisely, acceded to the request. This resulted in the formation of what is known as the Meat Board Selection Commitee.
The Selection Committee is made up of representatives from two of the major organisations in Australia. I refer to the Australian Wool Growers and Graziers Council and the Australian Wool and Meat Producers Federation. Those two bodies have representatives from each State. As things have worked out there is equal representation from each organisation. It is left to the Federal bodies of those two associations to appoint people that they consider are the best men for the job. If one looks through the lists of the Meat Board Selection Committee one will see that the two organisations really have not worried about State representation. They have gone for the people they consider will be the best to serve on the Meat Board Selection Committee. If one looks at the lists one will see that New South Wales has two representatives, Victoria has two, Queensland has one, South Australia one and Western Australia has two.
The responsibility of the Meat Board Selection Committee is to interview all nominees for the Australian Meat Board. Irrespective of State or organisation, they are interviewed and are judged according to their ability. If one nominee is required by the Minister, then it submits two names to him and it is left to the Minister to make the final decision. The Committee does the same thing if two members are required. Therefore the Minister has the final say in the appointment but the Selection Committee has the responsibility of recommending to the Minister the names of people who it considers would work in the best interests of the Australian Meat Industry, irrespective of States.
The industry, when it made its request to the Government, asked, as I mentioned earlier, that the size of the Meat Board be reduced from a cumbersome number to a smaller one so that it would comprise five meat producer representatives, two meat exporter representatives, one representative from the Commonwealth Government and the Chairman, who, as I said earlier is appointed by the Minister. The point is that there are now five grower members of the Australian Meal Board. It could work out that on the State basis Queensland, New South Wales, Victoria, South Australia and Western Australia are represented.
– What about Tasmania?
– It could be that there is a representative from Tasmania and that South Australia or Western Australia are not represented. It could work out that way. The Meat Board Selection Committee was set up and given the responsible job of selecting the best men in the industry. In selecting the best men in the Commonwealth the Committee chose two from Queensland, two from New South Wales and one from Western Australia. I appreciate, along with what other honourable senators have said tonight, that geographically it would be nice for the southern States to have greater representation. Hence the Minister has agreed again to the request from primary industry that the Meat Board be increased to six producer representatives. This is not being done at the direction of the Minister. It is being done at the request of the industry with the idea that the other States, be it South Australia, Victoria or Tasmania, can have representation.
I want to make one thing perfectly clear. All of us would be surprised if we did not see a representative of the southern States on the Australian Meat Board. Nevertheless, the Meat Board Selection Committee still has the power and the responsibility, should the people nominated from the southern States not match the ability of men from other States, to appoint the best people to do this job. We hear criticism of the Australian Meat Board, of its inability, its lack of enthusiasm, its lack of energy and of it not attempting to develop markets. We also hear criticism of the Government. All this criticism is wrong and is completely illfounded.
It has been suggested that there should be two other representatives appointed to the Australian Meat Board; I want to point out that this is an exporting and promoting body. It does not come into the ambit of the operations of abattoirs. As Senator Mulvihill said, export standards are one thing but the Meat Board does not enter the sphere of carcass quality. This comes under the heading of meat quality and is related to the operations of the abattoirs themselves. The Australian Meat Board is a promotional body concerned with quality. It deals with export standards. It has been suggested that there should be a representative from publicly owned abattoirs and another representative of the Australian Meat Industry Employees Union. In supporting Senator Bull’s remarks, I point out again that the Australian Meat Board is a Board representing the industry. It is financed by the industry and is doing a job for the industry. I consider that industry only should be represented on the Board. When I say ‘industry’ I refer to the producers in the industry.
Honourable senators opposite have said that abattoirs should be represented on the Board. I can cite only what happens in South Australia where the abattoir has an operational committee. The members of that committee include the people whom honourable members opposite say should be on the Board. I agree that they should be on such abattoir committees. This is an entirely different area; this is the area of operation. I would be one of the first to support that proposition. We are talking about two different areas of operation - the operations of abattoirs as against the promotion of meat sales overseas. Next thing we would have the housewives associations suggesting that they be represented on the Board. Where would we finish? The activities of the Board deal with all aspects of the export of meat. The Board is financed by the producers. Representatives of the producers of meat have been appointed to do a job for those producers. I do not think we, as a Senate, should consider any amendment to give extra representation on a Board on which that extra representation is not necessary. Furthermore, the suggested representatives the Opposition is seeking to have on the Board are not concerned directly with the export of meat. I support the Bill and I hope that, after the foreshadowed amendment is moved and after the speeches have been made, the Senate will support the Bill and not the amendment.
– in reply - everybody is supporting the Bill but an amendment has been foreshadowed in the Committee stage. My reply will be very brief because I think most of the objections raised by the Opposition and indeed the arguments that have been brought forward so far in favour of the proposed amendment have been covered very adequately by Government supporters who spoke for the Government. Neither of the proposed amendments, the one foreshadowed by Senator Wilkinson and the one foreshadowed by Senator Rae, is acceptable to the Government. I will give the reasons why. Before I do that, I will reply very briefly to some of the remarks made by those who have spoken during the second reading debate. I do not know whether this fact has been brought out but I want to make it quite clear that the registrations decided upon are granted by the Department of Primary Industry and the licences are granted by the Australian Meat Board. I think it is important to keep that in mind.
I was rather surprised to hear Senator Keeffe make allegations of false labels being placed on meat exported to the United States of America. I have made inquiries of the departmental officers who are advising me and they have not heard of this either. The honourable senator criticised the Government for not trying to open more markets. The Government has been doing that, as Senator Young pointed out. Senator Bull gave a very good outline of the conditions under which the Meat Board has worked. Senator Young pointed out that it was at the wish of the producers themselves that the number of members on the Board was reduced. I was interested to learn, from reading the Hansard report of the proceedings in another place, that there the Opposition was quite eulogistic about the work done by the Meat Board. It was very encouraging to read this.
I shall deal briefly with the amendment foreshadowed by Senator Wilkinson. Some of these matters have been referred to already and, indeed, refuted. The Government does not consider that representatives of public abattoirs, representatives of employees who work in the industry and representatives of producers who finance the abattoir boards should be given representation on the Meat Board. That has been pointed out. Some of the reasons for the Government’s point of view are these: The Board is not concerned with the terms and conditions of employment in meat works or the determination of the implementation of meat works procedure. Those matters are the concern of owners of meat works. In addition, public abattoirs are not concerned with the actual export of meat; their job is to slaughter the meat in the manner laid down. The responsibility for the inspection of livestock and of meat and for checking the construction and hygiene of meat works rests with the Department of Primary Industry and not with the Meat Board. The Senate has discussed the number of veterinary inspectors that are needed for this work and, in some cases, the dual inspection that does occur by the State inspector and the Federal inspector. I do not know whether this practice still operates, but I presume that it does. The Department consults the industry on meat works procedure through the Meat Advisory Committee, on which public abattoirs are represented. They have a say in this respect and in this manner. The legislation already has provision for the Board to consult other sections of the industry for the purpose of obtaining advice on any matter. These are some of the reasons why the Government cannot see fit to accept the amendment outlined by Senator Wilkinson, which he said will be moved in the Committee stages. Therefore, at this juncture I content myself with the remarks thatI. have made already.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 and 2 - by leave - taken together, and agreed to.
Clause 3. (1.) Section 8 of the Principal Act is amended -
– I move:
Leave out sub-clause (1.), insert the following sub-clause: “(1.) Section 8 of the Principal Act is amended -
by omitting from sub-section (1.) the word nine’ and inserting in its stead the word twelve’;
by omitting from paragraph (b) of subsection (1.) the word ‘five’ and inserting in its stead the word ‘six’; and
by adding at the end of sub-section (1.) the following paragraphs: -
one member to represent publicly owned abattoirs and freezing works which deal with meat or meat products for export from Australia; and
one member to represent employees engaged in the slaughter and preparation of meat or meat products for export.’.”.
During the debate on the second reading speech I gave reasons why I intended to move the amendment. I was under the impression that everybody would have read the principal Act. If they had read it they would have known the composition of the Board. I was quite surprised to hear Senator Bull and Senator Lawrie claiming that the Australian Meat Board’s function was to deal solely with exports.
– Mainly with exports.
– That is a different matter. Section 5 (1.) of the principal Act reads:
The objects of this act are-
to promote and control the export and the sale and distribution after export of meat from Australia.
That is admitted. It provides further:
Sub-section (2.) of section 5 relates to the functions of the Board. It reads:
The Board shall not perform its functions or exercise its powers except for the purpose of achieving an object specified in the last proceeding sub-section.
Let us now examine the powers of the Board. I am quoting these extracts from the principal Act to support my argument that the Board is not solely an export Board. That being so, it has a right to have on it representatives of producers who are concerned with the production and sale of meat both locally and on the export market. There is no reason in the world why there should not be on the Board a representative of publicly run abattoirs as well as a representative of employees engaged in the industry.
It will be noted that we have provided in our amendment that the employees’ representative shall represent the employees engaged in the slaughter and preparation of meat or meat products for export. We have the matter covered both ways. There is nothing wrong in asking that there be appointed to the Board men who are experienced in promoting good markets on the local scene as well as overseas. As to the functions of the Board, section 24 of the principal Act reads: (1.) subject to the next succeeding sub-section, the Board has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions. (2.) Except with the approval of the Minister, the Board shall not enter into a contract or agreement in connection wilh the purchase of real or personal property not being meat for an amount exceeding Twenty thousand pounds.
Those are the Board’s powers generally. I should have been reciting its functions. They are covered by section 23. Paragraph (b) of that section reads:
To make reports and suggestions to, and to formulate plans for the consideration of, the Minister with respect to -
the quality standards and rating of any particular class or kind of meat to be exported from Australia.
That is the export side of its functions. Paragraph (b) continues:
The Board’s function as prescribed by paragraph (c) of section 23 is:
To encourage, assist and promote the export of meat from Australia and to promote the consumption and sale, both in Australia and overseas, of Australian meat.
I do not think there can be any argument on this matter. I do not know what grounds Senator Lawrie and Senator Bull have for their objections. Senator Little did not say that he was totally opposed to our amendment. He said he would like to hear some more arguments. I thought everybody would have read the principal Act. Senator Rae, who is not here, had a copy from which he read extracts.’ Senator Young did not quite come to that point, although I thought he was going to do so when he began to discuss the number of members of the Board, concerning which he was wrong. He almost got to the point, but missed it. For the reasons which I have outlined, we submit there is not the slightest reason why these additional members should not be appointed to the Board, one to represent the publicly controlled abattoirs and the other to represent employees working in the industry.
– I support the amendment proposed by Senator Wilkinson. I made one or two interjections across the chamber when Senator Young was speaking.
– He did not say anything about the industry.
– -I agreed with what he had to say about the promotion of sales overseas. I think all other members of the Opposition agreed with what he had to say about that. After hearing the recitation by Senator Wilkinson of the Board’s functions, I am fortified in having no inhibitions about supporting his amendment. The main point here is the implications inherent in the cancellation of an export licence. It is obvious that an export licence would not be cancelled because something went wrong on the overseas market. It would be cancelled because something had gone wrong in the abattoir concerned. Therefore, it comes down to ascertaining what did go wrong and I submit that if there were on the Board the additional members whom we have suggested, there would be less chance of any misunderstanding arising or of defiance.
I do not think there is any need to belabour the point. We have no quarrel with the Board’s function in promoting markets for our meat overseas. The Minister referred to some eulogistic remarks that had been made in another place presumably by Dr Patterson and other members of the Opposition. I emphasise that we are not criticising the Board’s activities in promoting overseas markets. Indeed, I have asked on a number of occasions about the market potential in eastern Europe. We have no quarrel about promoting overseas markets. All I say is that I am unconvinced as to what can flow from the suspension of an export licence. It is for that reason that we want the other partner in the industry to be there, not in the dock, as it were, as one of the accused, but as part of the body that makes the decision or pronounces sentence.
– I reiterate our objection to the amendment. Senator Wilkinson was not quite correct in drawing from my earlier remarks the conclusion that we just wished to hear further argument. I thought that I made our position quite clear. This is a small Bill which sets out to do specific things. It has been considered by the whole of the industry, and when a Board such as this functions so successfully in an industry such as this it must have the support of the industry. If, under the guise of making a minor alteration, we alter the fundamental principles of the Board by introducing representation of sections of the industry which are not at present represented, whether they be employees in the works, producing meat for local consumption as suggested in the amendment, or whether they be housewives who are concerned in some respects with meat and could represent consumers, or whether they be the truckers who bring the beasts to the market, or anyone else, that would represent a major change in the whole concept of the Board which we are not prepared to accept without consulting the people engaged in the industry. Failure to consult could destroy the whole of the harmony with which this Board has functioned over the years so successfully. For those reasons, we are prepared to accept the minor alteration proposed by the Bill which seeks to give the southern states representation on terms identical with those on which other States are represented. We are not prepared to go further than that. We are not prepared to accept the amendment proposed by the Opposition.
That the words proposed to be omitted (Senator Wilkinson’s amendment) be omitted.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . 4
Question so resolved in the negative.
Clause agreed to.
Clauses 4 to 6 - by leave - taken together, and agreed to.
Clause 7 (Regulations may prohibit export except on conditions).
-I have already indicated that unless there is some reason why there should not be an appeal to a judicial tribunal from a decision of the Executive I consider it desirable that provision be made for such right of appeal. Therefore, I would like to ask the Minister whether he can give any reason why an appeal should not be provided for in this instance. I have already outlined in general terms why I think there should be a right of appeal.
– Firstly, I wish to inform the Senate that Senator Rae’s suggestion was considered by the Australian Agricultural Council, which decided that a right of appeal would not be in the best interests of the producers and of the legislation in general. I have been supplied with the following information on the legal side of the matter: An amendment in the terms originally proposed by Senator Rae would be pointless as it would be clearly constitutionally invalid. The High Court of Australia has laid down that a State court can be vested with only judicial power. The power that would be given to such a court by the suggested amendment would not be a judicial power; it would be an administrative power. If the Australian Meat Board or the Minister acts in any way outside of its or his power or acts improperly in any way, the High Court already has jurisdiction under section 75 of the Constitution to restrain the Board or the Minister from so acting. But an appeal on the merits, which is what the honourable senator proposes, is another thing altogether and I am instructed that it would be invalid.
– I think Senator Rae’s suggestion is commendable. I believe that there should be some kind of appeal from such an important administrative decision. Indeed, the Australian Labor Party takes the view that there should be provision for appeal on all such matters. I think it was only a few weeks ago that the Federal Conference of the Australian Labor Party decided that there should be an administrative court to deal with all such matters. It seems to me, however, that what has been said by the Minister is correct, that an appeal from an administrative decision to a court in the bare way that was originally proposed would be unconstitutional. Perhaps it might help honourable senators if I were to indicate why I suggest that this would be so. It is because the appeal would be against the simple refusal to grant or the cancellation of a licence on particular grounds set out and if it went to a court the court would have no basis on which to decide it. If there were grounds upon which it could be cancelled or refused, such as that a person was perhaps of bad character or that the premises were unsanitary, or something like that, the court could hear evidence and decide whether the charge had been made out.
– The reasons have to be stated.
– But unless there were in law some grounds upon which the court could enter into a legal consideration of this, it seems to me that we would be conferring an administrative power on the court and not a judicial power. But this could easily be corrected by providing for an appeal to an administrative body. We have administrative bodies with persons of the same background as those on the courts. For instance, there is the Commonwealth Conciliation and Arbitration Commission which has the President and Deputy Presidents who have qualifications to be judges and who are called judges. It would be a simple matter if the amendment were transposed to provide for an appeal to such an administrative body. Then, I think, the objection would be met. We should encour age provision for such appeals because it is a very serious matter to have a licence taken away or to have it refused.
There are many examples of this in the legislation of the States. For example, under the Milk Act in New South Wales a person can appeal if his licence is refused or cancelled. In that instance he can appeal to a magistrate and grounds for appeal are set out in the statute. Under the Transport Acts of the States there are similar provisions. Under this Bill the refusal or cancellation of a licence is a very serious matter and I should think that consideration ought to be given to whether there should be a right of appeal to an administrative body. That would be the simple way to do it, rather than endeavour to re-write the legislation by setting out grounds in law. I suggest that for the consideration of the Minister. I ask whether it would be acceptable if the matter were kept in the administrative sphere rather than attempt to bring it into the judicial sphere. If it were acceptable I think a very worthwhile amendment could be made to the legislation.
– Although I have some degree of sympathy with the amendment which has been suggested, I think it would provide further employment for the legal profession. However, I doubt whether it would be a safe provision.
– I rise to order. I want to know whether it is competent to discuss an amendment which has not yet been moved.
– I was just about to remind Senator Rae that he had not formally moved the amendment.
– I suggest that the amendment must be moved if we are to discuss it. Therefore, I suggest that the honourable senator move the amendment so that we know where we are.
– Senator Rae did foreshadow that he would be moving an amendment, but he has not formally done so.
– Speaking to the point of order, I said that I would consider moving such an amendment.
– Senator Rae indicated that he would move the amendment and outlined the terms of the amendment. A little while ago he said that he had not moved the amendment, but he did ask me a question about it. That is where the matter stands. Then Senator Murphy made a suggestion. I think Senator Prowse was under the impression that the amendment had been moved when he began to speak to it, but in fact it has not been moved.
– May we have your ruling, Madam Temporary Chairman.
– Senator Prowse referred to a suggested amendment. I think it would be quite in order for him to continue with his remarks.
– I take it that we are discussing the Bill in Committee and relating our remarks to the relevant clause of the Bill.
– The honourable senator has been in enough trouble for one night. He should not buy into more trouble.
– Order! I advise Senator Kennelly not to buy into any trouble either.
– I have been aware at times of persons being aggrieved. Persons who have had licences cancelled have appealed to the Board but their licences have continued to be inoperative. Appeals have come to me as a member of Parliament and I have taken the matter to the Minister for further consideration. The Bill as it now stands provides a considerable advance in relation to appeals and it does in effect provide for an appeal. Proposed section 29b. provides:
For the purpose of considering a request made tinder sub-section (7a.) or sub-section (7b.) of section twenty-nine, or sub-section (3.) of section twenty-nine a, of this Act, the Minister may, it he thinks it desirable so to do, appoint a person or persons to examine the matter to which the request relates and make a recommendation to him in relation to that matter.
Surely this provides a very great improvement. It enables the Minister to appoint a form of tribunal, somebody who, I take it, would be competent and would have a knowledge of the industry. I suggest that these are all great improvements. The
Minister may appoint a person to consider appeals against a decision of the Board. Previously, of course, the appeal was from Caesar unto Caesar, but here the Minister can seek advice outside the Board. I think this is a big improvement and I think that at this stage it should be acceptable to the Senate.
– 1 feel that there is involved in this, for much the reasons which have been stated by Senator Rae, a matter which we ought to treat as of the utmost importance. What we are dealing with are provisions under which licences, which represent the livelihood of persons who are in business, may be granted and, under subsequent clauses, may be suspended or cancelled. What this really involves is that a board, or subsequently the Minister if there is an appeal, may take away by the stroke of a pen, as it were, a person’s livelihood. There may on occasions be good reasons of policy which would appear to justify what is a tremendously severe penalty on a particular person, but if that sort of interference is to take place with the way in which a person conducts his business and is to jeopardise his whole livelihood, that should happen only in circumstances where there can be openness, consideration of the reasons given and no suspicion of partiality, or of reasons being advanced, possibly not stated, which do not warrant the result which ensues. These matters relate to the things to which Senator Rae referred in the report on a Minister’s powers.
I hope that the Minister will recognise that there is concern in the Senate at what is involved in these provisions. In my opinion it is not a desirable principle to accept that these results can ensue from the action of a Minister. In saying that I do not impute improper motives to a Minister. I do not suggest that he is unfair. It is just that a Minister by the very character of the decisions he gives and the circumstances in which he is placed when he gives those decisions never gives the same satisfaction which can be given after a tribunal hearing, conducted openly and with impartiality.
For my part, I say that it is not so much a matter of whether a court should conduct the hearing, or a tribunal, as it is that there should be an opportunity Cor an open hearing in which the reasons for and against can be advanced, and the criteria on which the decision is to be made can be seen to have been observed.
– I earlier foreshadowed that I would propose an amendment, giving an opportunity for the matter to be considered. I have myself given it further consideration. I still adhere to the views I put forward as to the desirability of some such principle. The reasons stated by the Minister are some considerations as to the types of appeals which may be launched, but for the reasons which have been put forward by other honourable senators tonight it is quite clear that some consideration as to the most appropriate form of tribunal, whether administrative or judicial, is desirable to hear such appeals. If it is to be a judicial tribunal, consequential amendments to the legislation are necessary. In the circumstances I do not propose to move the amendment I foreshadowed, but I reiterate that it is something which I hope will receive consideration at the earliest opportunity, so that the general principles which have been expounded tonight may be given some legislative enactment at another time.
– At this stage I will be very brief. We are not considering an amendment but the Bill as it stands. I have listened to the arguments for the establishment of a further tribunal to which people can appeal. I have heard nothing in the arguments to commend them to me. The Australian Meat Board is set up for a specific purpose, in the interests of the industry, composed of people within the industry, charged with a specific responsibility by the Parliament that appoints the Board. The members of the Australian Meat Board are specifically skilled and belong in the industry. It has been argued that the Board which has been chosen so carefully will act maliciously in some way to take away the rights of people without considering the function for which the Board was set up - to act in the interests of the industry itself. Whether the members of the Board could so act and get away with it is one question. Perhaps we should contemplate that they might do so. I would imagine that it is a remote possibility. But if they do, there is in the Bill as it stands a right of appeal to the Minister.
It is now suggested that some other tribunal should be set up because it would deal more fairly with appeals. I hold that a Minister does not hold to himself a right alone. He is answerable to this Parliament. What better court of appeal can there be for an aggrieved person who has been treated maliciously? We are considering the possibility that the Board will use its powers wrongly and evilly to give somebody an advantage over somebody else, or to take away from somebody a right he should have that is superior to the benefits of the industry itself. If it is not believed that the Board has the function of taking some rights away from a person, for what reason is it set up by the Parliament? Members of the industry concede that their individual rights should be inferior to the rights of the industry itself. The Board has the obligation to see that the industry functions in the interests of everybody in it.
As the right of appeal is to the Minister, as I said in my speech at the second reading stage, perhaps there would be those people who would question him on political grounds. We may disagree with him politically, but in the final analysis is he not as a member of Parliament responsible to the Parliament for any decision he makes on appeal? Ministers have been pilloried here because of an alleged mistake. I have no doubt that if the Board functioned wrongly, and an appeal went to the Minister and he functioned wrongly, ultimately the matter would come before the appeal tribunal of the Parliament itself. However much money is spent on setting up a board, I do not believe that a man can receive fairer treatment than at the hands of the Parliament. I believe that honourable senators are beginning to set up in their minds many problems that do not exist in this very simple piece of legislation.
– Provision has been made for a request to go to the Minister. I refer honourable senators to the proposed section 29b, which states:
For the purpose of considering a request made under sub-section (7a.) or sub-section (7b.) of section twenty-nine, or sub-section (3.) of section twenty-nine a, of this Act, the Minister may, if be thinks it desirable so to do, appoint a person or persons to examine the matter to which the request relates and make a recommendation to him in relation to that matter.
Provision is made for any redress for a person who feels aggrieved that his application for a licence has been disallowed; on the other hand, it seems that more is left to the discretion of the Minister than is usually the case. The point is being made that an appeal should go to a judicial person or tribunal who is not deeply involved in the industry itself or in its administration.
– Such a person or body might not know a thing about the problem brought up on appeal.
– That may be so, but mention was made earlier of a commissioner of the Conciliation and Arbitration Commission who deals with industrial matters involved in the meat industry. He would have to acquaint himself with details of the administration and workings of the industry. I think the point that is being made is that the provision is not specific enough to give a right of direct appeal. It is up to honourable senators to decide whether the provision should be made more specific. There is provision for a request, which is after all but a different use of words from ‘appeal’. A Minister may, if he thinks fit, grant a request or disallow it. The problem could be solved by making it mandatory for a Minister so that the wording would be not ‘the Minister may, if he thinks it desirable’, but ‘the Minister shall on appeal being made appoint a person or persons’. That covers the point that has been raised about an appropriate person who understands the industry and who would be a suitable person to deal with an appeal. I do not know whether this could be done by arrangement between the Minister and the Parliamentary Draftsman or whether it should be done by amendment. I do not feel very strongly on the point. I believe that the main matter under discussion relates to the discretion given to the Minister. I think it should be obligatory for the Minister to refer a bonafide appeal to a person who is capable of dealing with it.
– I note the points made by Senator O’Byrne. I am sure that if the Minister found it necessary to forward an appeal to an independent person it would be forwarded to a person of the kind mentioned by Senator O’Byrne. I have been able to obtain some additional information for Senator Rae. I think it will set his mind at rest to quite a degree. First of all, however, I want to point out that this legislation and the conditions laid down under it placing responsibility on the Minister is nothing new. We are not creating a precedent. There are plenty of Acts like it in existence and they have worked very well. As Senator Little pointed out, and as I think I mentioned earlier, the Minister is responsible to the Parliament.
The information I have is that a committee has been set up under the chairmanship of Mr Justice Kerr to advise the Government on the steps that may be taken to provide for administrative appeals. No doubt the committee will consider appeals from decisions of this kind. The committee has not yet reported.
Clause agreed to.
Remainder of Bill - by leave - taken as a whole, and agreed to.
Bill reported without amendment; report adopted.
Bill (on motion by Senator McKellar) read a third time.
– I ask for leave to give some information to the Senate in the form of a statement that the Minister for External Territories (Mr Barnes) made in the House of Representatives today on the subject of the Bougainville copper project in Papua and New Guinea.
– Is leave granted?
Opposition senators - No.
– Leave is not granted.
Debate resumed from 20 August (vide page 177), on motion by Senator Dame Annabelle Rankin:
That the Bill be now read a second time.
– The Opposition does not oppose this Bill. There is very little in the Bill to comment upon. It seeks authority for the Treasurer to raise money under the Commonwealth Inscribed Stock Act 1911-66 or in accordance with any Act authorising the issue of treasury bills. The amount to be borrowed is not to exceed in the whole $132,230,000. The Commonwealth seeks authority to raise this amount by loan for the purpose of complying with the Housing Agreement Act 1966. This Bill is designed for a very narrow purpose and any comments that we wish to make on housing and so on will not come within its ambit. It is necessary for the Commonwealth to have authority to raise this sum of money to enable it to carry out the wishes of both Houses of the Parliament in relation to the 1966 housing agreement between the Commonwealth and the States. The Opposition is not opposed to the Bill and will support its passage.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 20 August (vide page 228), on motion by Senator Anderson:
That the Senate take note of the following papers:
Commonwealth Payments to or for the States, 1969-70.
Estimates of Receipts and Summary of Estimated Expenditure for the year ending 30th June 1970.
Particulars of Proposed Expenditure for the Service of the year ending 30th June 1970.
Particulars of Proposed Provision for Certain Expenditure in respect of the year ending 30th June 1970.
Government Securities on Issue at 30th June 1969.
National Income and Expenditure, 1968-69. upon which Senator Murphy had moved by way of amendment:
At end of motion add: and that the Senate is of opinion that the Budget is inadequate in that -
– When this debate was adjourned last night I was referring to the small deficit which is proposed for this year. I hope I expressed adequately to the Senate my belief that we now have very close to a state of balance in the Budget. I think this is wise and necessary in a condition of what might best be described as economic equilibrium. There are papers available on this subject and on the Budget generally. With the concurrence of honourable senators I incorporate in Hansard table 1 in the Budget Papers which contains a summary of Commonwealth expenditures and receipts from 1959-60 to 1968-69 and the estimate for 1969-70.
In my time in the Senate I cannot remember the next matter which I shall raise for consideration ever having been considered in a debate on the Budget and I think it would be useful for us to do this tonight even in brief form. 1 refer to the method by which we finance budget deficits in each year. I believe some attention could usefully be given to this subject.
The Budget Papers contain statement No. 4 which is headed ‘Financing the Deficit’. It is important to understand this and to realise what flows out of Budget deficits of both the small nature of this year and the large nature of previous years. I will not seek leave to have this statement incorporated in Hansard but if honourable senators care to refer to it they will find that last year we had a total Budget deficit of $3 85m. The deficit was financed in this fashion: There was an overseas contribution in the form of net drawings under the credit arrangements for defence purchases in the United States which amounted to $55m, and there was the net proceeds of other overseas borrowings which amounted to $88m, giving a total of about $142m. There was a net contribution by other countries which bought our currency for International Monetary Fund purposes which took away $5m, and Australia itself had net loan proceeds of $381m. We redeemed treasury notes, leaving a balance of about $3 13m. We did some borrowing from the Reserve Bank and we ended up with $385m. Looking at the patterns of deficits through the years is interesting if this is a field about which we care to take some time, because deficit budgeting often is not what it seems to be. Last year there was a substantial withdrawal from the money market of both treasury notes and treasury bills. In earlier years there were substantial additions to the money market of treasury notes and treasury bills. The whole matter needs to be considered in that context. As I have dealt with deficit budgeting fairly substantially, with the concurrence of honourable senators I incorporate the following table in Hansard:
I have been looking to quite some extent at the past, and what happened in effect in the 1960s, the decade that is practically now beginning to end as we look forward in this Budget. We now begin to consider the kind of thing that this country will have to handle in a monetary sense in the 1970s. We are beginning, in effect, a new decade. Nobody has the capacity to anticipate what will happen, to make predictions or indeed to try to do so. One can make a wonderfully good case for forecasting financially in a government on a 5 to 10-year basis, but the impossibility of doing this has to be taken into one’s conception. It is possible to do it in some enterprises without the complexity of governments but the variability in government financing is of such magnitude that one can only look at the pattern for a year and do one’s best to think of the problems that lie ahead.
In the 1970s we have to consider, I believe, a new pattern of development, a new pattern of events and quite some changes in our own country but, equally, quite some potential changes in overseas monetary affairs. In the 1960s we had a substantial history of growth and achievement and the credit for this belongs, of course, to the Australian nation. We had a heavy financing of a tremendous growth programme, a big defence programme and a big social welfare programme. This was achieved first of all by savings - remembering that the Australian people save at one of the highest rates in the world; secondly, by what is regarded by most people as a fairly solid level of taxation which, it is agreed, needs examination equally as to its incidence between the people on low incomes, those on middle incomes and those on high incomes and as between direct taxation and indirect taxation. It certainly needs to be looked at to see whether or not the burden can be shared more equitably. Nevertheless, it is a fairly substantial taxation level. The growth and achievement was also financed by borrowings from abroad to support the deficit programme that I have mentioned, and also capital invested in Australia from overseas. Some people seem to object to borrowing from abroad and investments from abroad. We have a group in the Senate which objects to this, not really realising, I think, that without this we would not have the progress that we do have. It is equally a mark ot tremendous world confidence in this country that we can attract this kind of capital.
For me the 1970s will be fascinating years. I look forward to a tremendously interesting period, full of challenge and problems, full of new kinds of difficulties to meet, but full of new opportunities. I believe that this country is very well poised indeed to meet the problems of the 1970s. I have spoken on previous budget occasions about the very good information given to the Parliament and to the community by the Treasury. It is a very encouraging trend in Australia that monetary and fiscal matters and matters of budgetary policy are getting more and more into the sphere of public knowledge and understanding. Financial writers and financial journals certainly help in understanding this process. Good economic management is vital to every Australian and to every member of Parliament. While many choose to disagree with the comments that come from this side and we choose to disagree with honourable senators opposite, in the end, in reality, we are involved equally in a need for good economic management. One can establish a fairly good case for some clear and sane thinking on economic management in this country and for the removal of a series of old attitudes and shibboleths which are no longer real.
In the old days we had a lot of this kind of thing being conducted behind closed doors. There was a lack of understanding and a lack of information. What might be called ‘Treasury mystique’ was little understood. This, I believe, is past and I am glad that it is past. I think it is a much better thing that financial budgeting and monetary policy should be matters that are widely and regularly discussed and criticised in the Parliament and commented upon. In the end of it all, if we get a well managed economy for the Australian people good is done and we can all take the knocks that come out of this.
– Board room democracy - take it further outside Parliament.
– The honourable senator is suggesting that the Senate is an appropriate board room for the Australian people? I think it is a point well taken. One might make the comment that the members pf this board are not paid as well as are members of some other boards that one sees around. I think it can be said that at the end of this decade in a budgeting sense, looking forward to the next decade, this is a very good time for a broad review. 1 suggest to honourable senators with deference - I hope they will understand that 1 am just trying to be quite factual - that the economy has been characterised now for a long time by very wise and sensible management. What it has had has been a light and quite sensitive handling. It is equally fair to say, I think, that late adjustments to economic events tend to be tough and harsher adjustments. Always I argue for light adjustment, early information and quick action.
One thing that pleases me very much is to see that we are going to get ourselves into a better state of statistical knowledge. Commonwealth Statistician Archer has put out a proposal for the conducting of an integrated economic census which will bring into account for the first time from June 1969 the data on wholesale establishments in addition to those we have now on mining, factory and retail statistics. One of the problems in earlier years in relation to good budgeting and good financial management was the time lag in information - inaccurate information, and information that was not adjusted quite well enough for making value judgments. I do not think that we understood adequately. I am sure that 1 have not. This is rather new information to me but I looked it up and spent some time on it. One of the reasons why we are doing better in financial management is that we are doing better statistically. We are getting a better series of information. A lot of work is being done by the people who advise governments, in providing for them information that allows them to make better judgments. This, of course, allows us to make better judgments ourselves.
One can have one’s own view of what one wants to do at budget time and what one cares to talk about but I suggest that there are three critical issues in the government of the Commonwealth at any point of time and they are defence and security, economic management and social justice. It is in the management of defence and security and in economic management that we have the ability to help and to do something more in the area of social justice. I do suggest that budget time is not give-away time. It is not a give-away programme.
– You are not talking about the current Budget at all, are you?
– I suggest that I am.
– Tell us about the defence provision in it.
– In good time, though not perhaps tonight. I do think that it will be found that this is a sensible and well balanced Budget, but budget time is not give-away time. It is not a programme for Christmas. It is not Christmas tree time. What we are doing is trying to run a country well, both for today and for the future and this is something that we might perhaps bear in mind when we consider matters of budget impact. I am going to produce some figures on defence and security. I believe that this Government has done as it should have done in relation to defence and security. It has taken a positive line and a positive policy. It has maintained our alliances. It has added to our defence capacity.
The PRESIDENT (Senator the Hon. Sir Alister McMullin) - 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.
– Earlier today I was refused leave to give information to the Opposition in the form of an important ministerial statement made elsewhere. I now desire to offer information to honourable senators. The Minister for External Territories, Mr Barnes, gave the House of Representatives the following information this evening.
I wish to inform the House of developments in connection with the provision of land for the Bougainville copper project in the Territory of Papua and New Guinea.
An agreement has been signed for the purchase of Arawa plantation as a town site at Bougainville. The plantation will cease to operate for the production of cocoa and copra as from 1st September 1969. However, immediate entry will be made to start work on the hospital and school and for town surveys.
The owners will receive an immediate payment of $600,000. The final figure will be in accordance with fluctuations in the price of cocoa, the final estimate of production and a number of other factors. To ensure equity to the owners the factors which would determine the price would be studied by experts. A legally qualified arbitrator would determine claims for losses which do not relate to the commercial value of Arawa plantation. Special arrangements are being made under the agreement for the purchase of the orchid collection and the premises belonging to the New Guinea Biological Foundation on the plantation.
I also wish to report a further development in relation to native held land required for the project. Mr Paul Lapun, member for South Bougainville in the Territory House of Assembly, and Mr Raphael Bele, a Rorovana landholder, have had talks with the Prime Minister (Mr Gorton) and with me as Minister for External Territories. In these talks it was recognised that the Bougainville copper project, which has been the subject of special legislation by the House of Assembly and which has been endorsed again by that House in June last, is a project of great importance to the whole of the Territory. It. was also noted that the Arawa plantation had been bought by the Administration by negotiation with the plantation owners.
Messrs Lupun and Bele have also had discussions with Conzinc Riotinto of Australia in Melbourne. In the course of these talks the company has indicated that, in addition to whatever compensation might be payable to the native landholders for the purchase of the 175 acres of Rorovana land required for the port site, it is willing to plant equivalent areas of native owned land - at present not producing - with cocoa and coconut trees so that the landholders who are affected will have a continuing source of income in the future.
The Prime Minister and I emphasised in the discussions the importance which the
Government attaches to the successful carrying out of the Bougainville copper project from the point of view of the future welfare and the interests of the native people of Papua and New Guinea as a whole as well as of the people of Bougainville, and pointed out that for these reasons the Government could not allow the project to be blocked. On the other hand the Government wished to avoid unnecessary disturbance to the traditional way of life of the people. We indicated that if the native landholders at Rorovana and Arawa were prepared to negotiate a settlement similar procedures and principles would apply to the question of compensation or payment to native landholders of land as had applied in the negotiations for the purchase of Arawa plantation. There is no reason why these people should not enjoy a better life as a result of these changes.
Mr Lapun said that he did not wish to see the copper project abandoned. He felt that the prospects of a negotiated settlement would be better if the company could be joined in the discussions and participate in direct negotiations with the landholders. This was agreed to. Mr Lapun also stated that care for the social structure of the Bougainville people was of great importance.
Messrs Lapun and Bele are now returning to Bougainville. They have indicated that they are not authorised to make any commitments on behalf of the Rorovana people but in the light of their discussions with the Government in Canberra and with the company in Melbourne they will have discussions with the landholders and see whether they will agree to negotiate in the same way as the owners of Arawa plantation negotiated a settlement. Representatives of the native landholders could take part in these negotiations together with a legal adviser and an accountant of their own choosing. The Government would meet the reasonable costs of these advisers. Messrs Lapun and Bele are in agreement with the terms of this statement insofar as it relates to them.
– I simply rise at this time to bring before the Minister for Housing (Senator Dame Annabelle Rankin) a study that I would like her to undertake during the next few days. This is a question that will arise on many occasions now. It relates to urban development. In the Homebush West region in New South Wales, where many of the people would probably be occupiers of War Service Homes Division dwellings, the people are menaced by certain State instrumentalities, namely, the new city marketing authority and other attendant groups. [Quorum formed.] I am asking the Minister for Housing to have an examination made of the rights of people who are menaced by State or civic development. As a result of the resiting of high tension wire towers, contracts with the War Service Homes Division and all attendant details could be involved. I content myself with drawing the Minister’s attention to a docu ment that she would have received from Mr Hallinan, the Secretary of the Flemington Progress Association. I leave the matter to her, confident that such a survey could produce useful guidelines in future cases of this nature.
[10.38] - I thank Senator Mulvihill for raising the points he has raised. I shall have a look at them and advise him accordingly.
Question resolved in the affirmative.
Senate adjourned at 10.39 p.m.
Cite as: Australia, Senate, Debates, 21 August 1969, viewed 22 October 2017, <http://historichansard.net/senate/1969/19690821_senate_26_s42/>.