COMMONWEALTH OF AUSTRALIA
SPEECH BY
The Rt Hon. J. G. GORTON, M. P.
ON
BACKGROUND TO COMMONWEALTH-STATE
TALKS ON OFF-SHORE LEGISLATION
( Ministerial Statement)
[ From the ' Parliamentary Debates,' 15 May 1970.]
Mr GORTON ( Higgins-Prime Minister)
-by leave-This is not a statement on the
control of off-shore minerals or on the need
to decide where proper legal authority for
that control should lie. That is best left for
a discussion of the Bill. But last Friday the
former Minister for National Development,
the honourable member for Farrer ( Mr
Fairbairn), placed before the House his
interpretation of meetings with the States
and his belief that the Commonwealth
Government had broken commitments which
he had made with the States. I think that
that interpretation is mistaken and I believe
I should put on the record the Government's
interpretation in this matter. In
February 1969 Cabinet decided that the
Commonwealth should legislate to assert
total rights over the seabed outside the
3-mile limit. It deputed the Minister for
National Development to inform the State
Ministers for Mines of this decision. This,
Sir, was not an offer to the States. It was
not an approach which said: ' If you agree
to us legislating for control outside the
3-mile limit we will agree to you controlling
inside the 3-mile limit'. It was simply a
clear and unequivocal statement of intention
on the part of the Government.
At the Australian Minerals Council meeting
of 3rd March, the Minister made a statement
setting this out very clearly. The state-
16067/ 70 ment begins on page 39 of the tc-anscript
and the significant words are on page 41.
They are:
As to off-shore minerals other than petroleum,
the Commonwealth is of the view that it should
proceed on the footing that it enjoys total rights
outside the three-mile limit. It proposes to legislate
in pursuance of this position.
On page 44 of the transcript the Minister
was asked:
When do you intend to legislate?
And he replied:
No date has been set but I assume it wilt be
done as soon as is reasonably possible.
From that time forth all the discussions and
all the proposed arrangements were held
against the background that the Commonwealth
had announced its intention to
legislate and to legislate as soon as was
reasonably possible The Ministe'r undertook
at that meeting that there would be further
discussions with the States before the legislation
was actually introduced. But those
discussions were not to be on whether the
Commonwealth would legislate, or when it
would legislate, because clear statements of
intention had been made on that. They were
to be discussions on consequential matters
which would arise as a result of the legislation
we had announced-matters of
administration, royalties and things of that
kind. Such discussions were in fact held in
September 1969. The March 1969 meeting
closed with the ordinary, normal, machinery
provision that the next meeting of the
Minerals Council, to discuss these matters,
would be held in Perth in February 1970.
Then on 30th July the former Minister for
National Development wrote to me. He said
that he wished to write to the States and
indicate that he was unable to hold a meeting
before the one scheduled for February
1970, and he also wished to write to them to
tell them that the Commonwealth would not
legislate unilaterally until there had been an
opportunity to discuss fully and frankly the
views he had expressed to them at the
March meeting. I replied on 18th August
raising no objection to his writing to the
States on the general matter of the meeting.
However, I said:
I would want to avoid if at all possible a situation
where the Commonwealth became committed to
long drawn out discussion or consultation with
the States on this matter. For this reason I would
prefer that you eliminate from your proposed
letter the suggestion that the Commonwealth will
not legislate unilaterally until after the completion
of full and frank discussions with the States on
this matter.
I think the Minister fully understood that I
did not want to give any assurance to the
States that we would defer legislation, for
after receiving my letter the Minister did not
write to the States in the terms he had proposed,
or, indeed, write to them at all.
Further, I think the Minister was in no
doubt that the introduction of legislation
did not depend on prior agreement with the
States, for his quotation from his letter to
me of 30th July is immediately followed by
In the meantime my Department is pressing on
with the basic work necessary for the preparation
of legislation. This will be of value whether or not
we eventually succeed in achieving an amicable
arrangement with the States.
The ' amicable arrangement' referred to was
on the regime-not on whether we should
legislate. The Minister then arranged, or
agreed to, a meeting of the Minerals Council
to be held on 26th September 1% 9. That
meeting was held against the background I
have just outlined. That is, the State
Ministers had been told by the Minister
that we proposed to legislate as soon as
possible. The discussions wbich had been
suggested were not discussions on whether
or when we should legislate, but discussions
on the administrative and other consequential effects of our legislation on what is
called the regime. And the Minister was
proceeding on the basis that the introduction
of legislation did not depend on agreement
being reached with the States.
I can see no evidence in the records
before the House that in the September
transcript there was anything to show that
this position was changed. The Minister
does not retract his previous statement that
we intended to legislate. Nor did he retract
the statement that we intended to legislate
as soon as possible. He did agree that there
would be further discussions. There have
been further discussions and I have no
doubt that there will continue to be more
discussions. But I can see no commitment
that he would delay our legislation until
after those discussions had been held. In
short, Sir, it seems to me that the transcript
shows that we were committed to further
discussions but not to prior discussions.
What happened was that the State Ministers,
through Mr Griffith, made an opening
statement expressing the view that the
petroleum legislation should be taken as
the model for further legislation. That is,
it was suggested that no attempt should be
made to discover where sovereignty and
responsibility in this matter legally residewhich
was the object of the Commonwealth
Government's legislation. The Minister
undertook to place these views before
Cabinet and, Mr Speaker, he had verbal
authority to say that he would place those
views before Cabinet. This was done by the
incoming Minister. Cabinet considered them
carefully, but it decided that -the question of
legal responsibility should in the national
interest be determined.
That meeting of 26th September then
discussed, from page 6 of the transcript
until page 39, the method by which new
titles should be granted in what was called
the ' interim' period, or the ' interregnum'.
That is, I take it, the period between the
date of the discussions and the date when
Commonwealth legislation was to be introduced.
That discussion on the method of
issuing titles arose because the Minister had
told the States in March that pending the
introduction of the legislation he had
announced to them he did not wish the
States to issue new titles outside the 3-mile
limit unless the Commonwealth had first
concurred.
The States did not wish to accept this.
They wished to issue titles themselves out
to the continental shelf, with the Commonwealth
merely having the authority to
object if there was a Commonwealth bead
of power involved. It was this matter with
which the discussions of 26th September
were concerned, from, as I have said, page
6 to page 39 of the transcript. I can see in
them nothing to substantiate the claim that
they contained -any commitment, or any
agreement, as to whether or when the Commonwealth
should legislate. But the former
Minister thinks he does see in them passages
which show he entered into a commitment.
So I will examine these passages which he
quotes, for while I do not for a moment
reflect on his own beliefs, I do not think
that the passages he quotes support his own
beliefs. He quotes a passage from his letter
to me, which reads:
I will suggest that the matter be taken up at the
next scheduled meeting of the Minerals Council,
which is set down for February 1970.
And he says rightly that I did not object to
this. But this means merely that the
Minister had written to me saying he did
not feel that he could propose a firm date
for a meeting before February and the
' matter' referred to is the discussion on the
administrative arrangements consequent on
the Minister's announcement that we intended
to legislate. Next he quotes a
passage from page 18 of the transcript in
which he agrees to hold a meeting in
December, instead of February, if the States
wish. This is evidence that there was to be
another meeting or meetings, but that question
was never in doubt. In fact there have
bbee enm omree, e tibnugts ita nids ntohte rae cwoimll, m iIt maemn t suthrea, t'
nothing would be done by the Commonwealth
before there was a further meeting
or meetings. After all, we had already
announced our intentions to legislate as
soon as possible and discussions had to be
held on matters flowing from that discussion.
The former Minister next quotes Mr
Griffith on page 24 of the transcript:
I have pressed you to a meeting in December and
with this in mind-the possibility of the status quo
arrangements being continued until the Commonwealth
and the States come to a mutual arrangement-
I would gladly withdraw and suggest you
call the meeting when you are ready.
The former Minister asks: ' Are not those
the words of a man who believes he has
entered into an agreement?' But the transcript shows that the answer to that question
must be no, because what Mr Griffith was
saying to the Minister was: ' Let us-the
States-continue to issue titles as we are
doing at present. Do not change that during
the interregnum. If you will agree to this I
will not press for an early meeting.' But the
Minister replied that he could not agree to
the suggestion as put and that if the States
issu~ ed titles without first conferring with
the Commonwealth-' It is on your own
head.' Mr Griffith at once replied-page
26 of the transcript:
It looks to me as if you will not come our way at
all. You are not proposing to budge an inch from
the March statement. You are not prepared to
give us anything.
Mr Speaker, those are not the words of a
man who believes he has entered into an
agreement. The next passage quoted, from
page 30, is an exchange between Mr
Griffith and Mr Bowen which shows nothing
except that Mr Griffith was asking what
would happen under the legislation which
the Commonwealth had said it proposed
to introduce to assert control outside the
3-mile limit. The last passage quoted by
the Minister arises in this way: The Minister
stated on page 36 that in the interim period
the Commonwealth could not go further
than to say that it would support titles
issued by the States if there had been consultations
with the Commonwealth, but he
would not guarantee to support such titles
if there had not been consultations. Mr
Griffith said he was prepared to leave that
matter on that basis and suggested not that
the States would accept a later meeting to
meet the convenience of the Commonwealth
but that they wanted a later meeting
-in May-so that there would be an
opportunity for some of the members to
visit the north of Western Australia at that
time. To this the Minister replied:
All right, and we would have an interim meeting
as soon as we are ready to discuss this particular
matter. Since the particular matter discussed for the
last 30 pages of the transcript bad been the
method of issuing titles in the interim
period I think it is difficult to think that
this particular matter can refer to anything
but that.
Sir, I have spent some time on these
excerpts quoted by the former Minister
because they are the evidence he produces
to suggest a breach of commitment by the
Commonwealth. I do not think that they
support that charge. They do show a commitment
to further discussions. But the
Government does not think they show a
commitment to refrain from announcing
legislation before those discussions. Mr Fife,
a member of the Council, summed it up
on page 39 of the transcript when talking
about the Press release which might be
made. He said:
I think all we need to say is that we have
asked the Commonwealth to agree to a proposition
similar to the off-shore petroleum legislation.
Secondly the Commonwealth has agreed to consider
this proposal.
That was all. Yet I do not believe the
honourable member for Farrer would make
the statements he has made unless he
thought he had a basis for them. We have
only the transcripts to go on. It may be that
there was an impression not shown by the
transcripts. Maybe there was an impression
left around the table that there would be
discussions-not just discussions but discussions
before the Commonwealth proceeded
on the course or announced again
the course which it had previously
announced, with additions. But the records
do not show it. All they show is that while
there was an undertaking for further discussion-
which has taken place on some
matters-there was no undertaking recorded
by the Minister on behalf of the Commonwealth
that that legislation would be
deferred until after those discussions.
But, even assuming that there was an
impression, an understanding, a feeling in
the minds of the people around the table,
which does not appear in the records of the meeting-let us assume that that is so
-what in fact flows from that? It would
mean, on that assumption, that there was
an impression in the Minerals Council that
before further discussion the Minerals
Council would be informed of the Commonwealth's
decision on their proposals to
it. Well, the Minerals Council was not so
informed. It was not called together. It
was not so informed although each
individual member of the Council was
individually informed. So I suggest that
even if that impression was there-and this
is not evident in the transcript-that is the
most that can be made from that approach.
So I believe that the records sustain no
charge of ill faith. I think the most that
can be said of any impression, if there was
any, was that the Council was not called
together to be told of the Commonwealth's
rejection of its proposals for petroleum
legislation. I think that all these papers are before
the House for analysis by each honourable
member. I believe that that seems a flimsy
ground on which to accuse the Government
of dishonour and it is not supported by the
record. I do not doubt for one moment
that the former Minister has given his
interpretation with sincerity and that he has
expressed his views of the feeling of the
meeting at which he presided-and he could
well be supported by others. I do not doubt
that he has given that interpretation with
sincerity. But, Sir, so has the Government
on the record which it has placed before
these Houses of Parliament.
Motion ( by Mr Snedden) proposed:
That the House take note of the paper.
W. G. MuRRAY, Government Printer, Canberra