Now for the rest of the debate, lower house.....and don't say I don't give you anything. Probably best if printed out.
The formatting doesn't always work btw. ==========================
Assembly 12/06/1986 MINING (VALIDATION AND AMENDMENT) BILL Second Reading Debate resumed from 10 June.
MR MacKINNON (Murdoch-Deputy Leader of the Opposition) [11.57 a.m.]: This legislation was largely brought about by an activity which was reported in The West Australian of 7 January. If I read the first three sentences of the report of the article, it will give members an idea of exactly what initiated the legislation. I quote- A group of men has pegged mining claims in the middle of one of Australia's newest and biggest goldmines-the rich Paddington pit owned by the Sydney-based Pancontinental Mining. The men pegged the mine, 341m north of Kalgoorlie, three seconds after the stroke of midnight on New Year's Day. They were staking a claim to about 19 hectares of the Paddington mine because Pancontinental had apparently neglected to renew a 21-year lease that came into effect on January 1, 1965. Subsequently, on 14 January, the Minister indicated he would be moving to legislate, firstly to ensure that Pancontinental Mining Ltd did not lose its right to the mining lease for that particular mine; and secondly, to remove any doubts which may be contained within the current legislation relating to his authority to act in these cases. What was interesting and surprising to me, of course, was that the legislation then went on to cover other companies, including Western Collieries. I understand Western Collieries Ltd's lease in fact covers a fairly large part of its current mining lease in Collie. So from the outset you can see, Mr Speaker, that the legislation relates to some very important areas of Western Australia, and some important principles are involved. I would like to indicate to the Minister, on behalf of the Opposition, firstly our thanks for giving us a prior confidential briefing about the legislation before the Parliament met, and for giving us the explanation requested at that time in relation to it. At this stage I can say that we will be giving our support to the Bill at the second reading stage certainly, but we would not be supporting the legislation at the Committee or third reading stages until such time as we receive some satisfactory explanations of the questions which I will raise in a moment. As a consequence I would like to turn to the first part of the legislation which relates to the validation of the actions of the Minister in renewing the mining leases for both Pancontinental and the three other parties listed in the Bill. As an Opposition, as a general principle, we have great hesitancy in agreeing to the passing of retrospective legislation at any time. I am sure members would understand that, bearing in mind the mauling our party received particularly from the business community as a result of the retrospective tax legislation introduced by our Federal colleagues, we are doubly wary of passing that sort of legislation. Hence, if we are to agree to any form of retrospectivity, we must do so with full knowledge of the reasons for that legislation. As a consequence, when the Minister responds, we ask him, firstly, if possible to ex-plain why in each case the companies failed to renew their leases by the due dates. I am aware of the position in respect of Pancontinental Gold Mining Areas Pty Ltd. However, members are entitled to receive an explanation in that regard, particularly as the Government seeks to overcome the problems which have occurred in each case because of the companies' negligence or for whatever reason. Therefore, in the first instance, would the Minister explain why Pancontinental failed to renew its lease? I should like a similar explanation in respect of Charles Barton Cecil Jones, the estate of Robert James Donovan, and Western Collieries Ltd. It is particularly important that we receive such an explanation in respect of Western Collieries bearing in mind, in economic terms, the size of its operation compared to that of Pancontinental. The Government owes members of Parliament, particularly members of the Opposition, an explanation of that sort, because we are being asked to agree to the Minister's taking this sort of retrospective action in respect of those companies and individuals. The second point on which the Opposition would like an explanation relates to the Minister's Press statement of 14 January which contained the following comments on page two---
With this in mind, I had to decide for myself what the true legal position was. I should stress that my decision is my own and, in particular, is not made on the advice of the Solicitor-General.
Once again, I respect the Minister's right to make decisions of that nature, but I would appreciate it if he indicated the nature of the advice given by the Solicitor General and whether the Minister acted in accordance with that advice. If he did not do so, why not? Members of this place, in particular, members of the Opposition, are entitled to have that information bearing in mind the seriousness of the case and the type of legislation we are being' asked to pass. There is a third point on which I would like the Minister to provide some explanation. Not only the Opposition, but also the Parliament is entitled to receive that information, particularly in view of the fact that members are not as conversant with the Act as is the Minister or his advisers. Only two or three members on this side of the House may have some better knowledge of this matter than does the Minister or, indeed, than I. Firstly, I ask the Minister what is different about this case from what was published at the time by Geoffrey Hull of Norseman Gold. Perhaps the Minister will say the difference related to timing and, if that is the case, I ask him what " sort of time limits will be brought to bear in these cases. Secondly, why did the Minister not take some action in relation to the Westside Mine case in respect of the Mt Seabrook talc deposit? Although I have not made extensive inquiries, it has been put to me separately by the parties who are representing the peggers in this case that it is very similar to the cases with which we are dealing now, in that the Government should have taken action, but did not. Again, I would appreciate some explanation in that regard. Subject to the explanations provided by the Minister, the Opposition will support the first part of the legislation containing the validation clauses. We understand fully the problems involved in situations such as those in which„ Pancontinental and Western Collieries find themselves. We do not believe it is reasonable that such large investments should be placed at risk because of, I assume--- and this is the aspect on which we hope to obtain an explanation---some inadvertent administrative error. Indeed, that part of the legislation received rather wide support from members on this side of the House, subject to receiving satisfactory explanations from the Minister. The second part of the Bill underwent wide, spread debate among our members. In particular, some of the wording of the legislation is of concern not only to me, but also to other Opposition members. We are concerned initially as to why it is necessary for the Government to legislate in such a sweeping manner in this case when it has been indicated by members of this Parliament and others outside the House that, if proper administrative procedures were established, it would not be necessary to grant such sweeping powers in the first place. I shall expand on what I have said by giving an example. It has been put to me that the Mines Department does not, in the first instance, issue any renewal notices to holders of mining leases. I put it to you, Sir, that when our drivers' licences are due to expire, we receive renewal notices. Reminder notices are sent out and we may then pay for the renewals. If we do not do so, we receive further reminders, and if do not pay them we become unlicensed drivers.
However, I am advised that is not the case in respect of renewing mining leases. It has been suggested that, rather than use a sledgehammer to crack a nut, we should implement proper administrative procedures which will ensure that, when mining leases are due for renewal, those involved are issued with reminder notices probably 30 days prior to the expiry date.
Mr Peter Dowding: What would that cost?
Mr MacKINNON: I am posing the question to the Minister that this sort of thing should not happen. The Minister for Industrial Relations may well ask what such a procedure would cost. However, alternatively the question may be posed as to how much it would cost Pancontinental or, indeed, Western Australia, if the current course of action continues.
Mr Peter Dowding: The issue is whether you want bigger government or smaller government.
Mr MacKINNON: It is surprising to say the least that such an administrative procedure is not in place and people in this House and outside have raised that point. I ask the Minister to explain why that cannot happen. There may well be a satisfactory explanation. Indeed, as the Minister for Industrial Relations says, such a procedure may be wildly expensive. However, given the advances in technology which have occurred recently, I can not see why the necessary information could not be fed into a computer which would then automatically issue reminder notices. The Mines Department records information in respect of mining leases and whether they are due for renewal. Surely it would not be too administratively difficult or expensive to issue reminder notices in respect of renewals of lease. The second point I raise relates to the second part of clause 7 which deals with section 111 A. I shall debate this issue in detail in Committee, but I shall point out our concern to the Minister now in order that he may give us an explanation of the wording of the clause when he replies. I refer to proposed new subsection (1) (b) of section 111 A. Before reading para-graph (b) I point out to the Minister the word "or" which appears at the end of paragraph (a). Thus paragraph (b) must be read in conjunction with paragraph (a). The section would then read, if we include proposed new subsection 1 (b)----
(1) Where an application is made for a mining tenement but in respect of the whole or any part of the land to which the application relates---
(b) the Minister is satisfied on reasonable grounds in the public interest that---
(i) the land should not be disturbed; or
The part that really concerns us is the following--- (ii) the application in question should not be granted.
The Minister would know, as I do, now having read the Act, that present section 111A is worded basically in the same manner as proposed new subsection (b), excluding that small subparagraph (ii) which has been added. We are concerned that, read in its broadest sense, this would mean that the Minister could be satisfied on reasonable grounds in the public interest that the application of the interest should not be granted. This means that any application for any form of mining tenement would not be granted, provided the Minister was satisfied on reasonable grounds and in the public interest, whatever they might be. In other words, the Minister---as the section goes on to say---may by notice served on the warden to whom the application has been made, refuse that application whether or not the application has been heard by the warden. That seems to be a significant change to the Mining Act. We are not opposed to ministerial discretion, something we included in many areas of the Act when we were in Government. Again as a person not experienced in these areas but as someone who has read the Act and has discussed it with a few people in the community, it seems to me that this section certainly is one to which we would take exception unless we can find some other explanation of the reason for its inclusion.
I also ask the Minister to indicate what the industry's response has been to the legislation. I understand it also received a copy of the legislation only in the last day or so and I am not aware that it has given an official response to the Government. I have contacted both the Chamber of Mines of WA and AMEC and both indicated they had only just received a copy of the legislation, and AMEC particularly indicated concern about this last point I have raised. I am interested to learn from the Minister when the industry was advised of the legislation and particularly of this amendment, and also whether he has received any response. I take this opportunity to point out to the Minister that times do change, and that is particularly so when we look at this type of legislation. I am aware, as the Minister would be, that the Afro-West Mining and Exploration Pty Ltd legislation which was introduced when we were in Government did not relate precisely to the same sort of facts but it did to the principle, where the Government was required to implement legislation in the interests of maintaining a major project in this State. It is interesting to recall that at that time the present Premier, the Deputy Premier, and the Minister for Agriculture were all strongly opposed to what they considered was the Government's usurping of the rights of companies to pursue their rights in courts. As we explained at that time to the then Opposition, we accept the need in certain cases for this sort of action to be taken. Subject to the Minister's providing a satisfactory answer on this occasion, we will accept the need for this legislation now. I am pleased to see that members opposite, now in Government, have taken a responsible attitude to this matter, something which was not the case when they were in Opposition. The final matter to which I refer and again on which I would like an explanation from the Minister relates to the whole question of security within the Mines Department, a question which was raised at the time of the Pancontinental overpegging. I will refer briefly to an article which appeared in the 20 January 1986 edition of Gold Gazette, which article really summarises the position and highlights our concern. The article is headed "Paddington Affair: Privileged Information?" and reads as follows---
The paddington pegging affair, which has been well documented in the latest issue of Australian Business, has raised other matters not related to the Mining Act.
One is the mounting innuendo about some Mines Department people acting as moles for pegging parties and companies, a claim that has been passed on frequently as third hand gossip to this writer. In the Paddington case, a departmental enquiry has indicated that prospector Bierberg and tenement specialist Leith Beal had made their own searches well prior to the moonlight pegging raid, which was executed with the help of surveyors J. F. Mort who undertook previous work at Paddington.
This does not allay speculation that people in the Mines Department are feeding information to companies on prospects that may be vulnerable. Unfortunately, it makes the entire staff uncomfortable and there appear to be behind-the-scenes moves to tidy up the problem.
There is evidence that a strong short selling campaign was attempted by one small stockbroker, and amid recommendations to make short selling legal it begs the question of how ethical it is for people to exploit potential adversity and to perhaps deliberately try and erode an operating company's status. In this case the stockbroker was responsible for spreading the ' news that the centre of Paddington's pit might be lost to a pegging raid about or even before Pancontinental was aware it ~ had been overpegged. I repeat that at the time of the Pancontinental overpegging, we saw some Press comment on it. I am aware also that my predecessor in the ` shadow portfolio, Hon. Peter Jones who, was the member for Narrogin, had made some comment about this matter. I would like the ` Minister to comment on what action, if any, he has taken as a consequence of those repofls.1 am aware of Press reports which indicated an internal inquiry was undertaken and the Minister was satisfied that the matter had been cleared up. Nevertheless I would like him to take the opportunity of this debate to clear up the matter and to explain the nature of the inquiry, how extensive it was, whether it unearthed any examples of privileged information being purveyed to outside parties, and whether the people involved had action taken against them. This is a serious matter, which I am sure the Minister acknowledges; I am sure he is aware of the seriousness of the potential for information to be passed out in that way. Our concerns were raised at the time not just by our spokesman but by others was well. An article in the Mining Monthly for April 1986 was brought to my attention recently. The article was headed "Spinifex". I do not know whether the Minister has seen the article, but certainly it caused me some concern. I made same inquiries of the proprietors of the magazine who assured me that, while the article was written in a humorous vein, the facts by and large were true. If that is the case the article requires some comment from the Minister, who might indicate whether an investigation into the article has been carried out. The article alleges that a group of people got a female employee of a warden's office rather inebriated and took advantage of her state to gain certain confidential information contained in the offices of the warden. I am not aware of the specific detail, and while the article is written in a lighthearted vein, I guess to protect the owners of the magazine from prosecution should they have been making wildly exaggerated claims, I believe the matter to be serious enough for the Minister to indicate whether he has made inquiries into the substance of the article. We need to know whether any action has been taken to ensure that the security of documents contained in the offices of wardens is protected. Again I indicate that we will be happy to support the legislation at the second reading if the Minister responds to the questions we have raised, particularly those relating to the legislation and specifically about the clause I mentioned which we really do have some concern about. Unless we receive satisfactory explanations we will have to oppose the legislation. MR LIGHTFOOT (Murchison-Eyre) [12.20 p.m.]: I also have some apprehension about the retrospectivity of the proposed amendment. Enacting such legislation at a time when we are smarting from retrospective legislation that "compasses a much wider realm than that proposed by this legislation should not sit well with any member or this House. I also have some concern about what appears to' be an extension of the Minister's power. It would be fair to say that we do not need to fear giving added power to a good Minister and a good Government, but giving added power to a Minister and a Government which are not seen perhaps in that light creates some uneasiness within me and, I am sure, within the hardworking people of my electorate. I wonder if the open pit of Pancontinental had been owned by a prospector and the reverse situation had occurred and Pancontinental had come in and legally pegged an area over the pit that was at the time of pegging indisputably Crown land, would the Government have been so eager to act to protect the interests of the prospectors? I trust that in supporting the first part of this Bill the House, and especially the Government, keeps in mind the consistency needed not only to protect a company whose activities are indisputably to the benefit of the goldfields, but also looks to protect the smaller prospector, the person who, on almost every occasion has found and has been responsible for the genesis of these mines. I recall the inconsistency that the Deputy Leader of the Opposition mentioned in regard to the Mt Seabrook talc deposit situation where, notwithstanding the considerable expense of machinery, etc., that was on this lease near Meekatharra, it was not found for the people whose lease had expired and who were working the mine. I think the case is still going on and I do not think there is a clear title yet. The situation has continued for some years. If this proposed retrospective legislation were used in that case, I am sure that the owners of the Mt Seabrook deposit would have retained their lease, and there would have been employment in Meekatharra, whereas, many hundreds of thousands of dollars were lost. I do trust that the inconsistency which has been portrayed over the last few years will be diminished with the introduction of this Bill. I am also at some small loss to understand why a deposit of this nature---and on which I believe some $40 million had been spent---the owners, Pancontinental, did not at any time approach Wingate, who came in after midnight on 31 December and who tried to negotiate a deal with the peggers. It was well known by the Pancontinental people that when the lease expired it would become Crown land, and I won-der why the Pancontinental people felt so confident that they did not have to approach the people who pegged the site. I repeat: the area of the open pit was a substantially larger area than the area of the lease which had expired and which was pegged by Wingate. Wingate pegged the heart of this area, and the heart of it was crucial to the working of the whole open-cut operation. It meant, in fact, that the men were stood down and the mine was shut down completely for several days, as I recall. So the mine could not continue to operate while this matter was being disputed.
I repeat that there needs to be some clarification of the reason that Pancontinental felt so confident in retaining the lease and in fact could almost foresee its outcome and why it did not approach Wingate and work out some sort of deal. It is my understanding that Wingate may have been very receptive to such a deal.
Mr Pearce: Yes, they were. They were asking for $1.25 million; that is how receptive they were to it.
Mr LIGHTFOOT: If I may continue? I do feel that there needs to be some equity of redemption with respect to the expiration of these licenses. I think one member mentioned that a provision for a period of 14 days has merit. I think another member interjected to say something about the cost. Of course these matters cost money. This situation could have cost many millions of dollars and I do not think that member would have the temerity to suggest that the sending out of notices will cost many millions of dollars. I would be quite happy for a fee of $1, $2, or $5 to be placed on applications for these leases when first applied for in order to cover the cost of renewal. No-tices already are sent out in regard to vehicle licensing, insurance policies, etc.
The redemptive period that applies after the expiration of a lease is certainly a matter that Pancontinental could have taken advantage of in this case.
I find mitigating circumstances apply in Pancontinental's case. Of course, as I said earlier, I have no disagreement with the decision to reinstate the lease to Pancontinental because of its broad interests in the goldfields.
MR TAYLOR (Kalgoorlie-Minister for Health) [12.28 p.m.]: I have a particular interest in this matter, and one reason is that the Pancontinental goldmine was the first new gold mine which was opened in the electorate of Kalgoorlie, as opposed to the electorate of Esperance-Dundas, for many years. Having attended the opening of the goldmine and having taken a very real interest in the project from the beginning, 1 was certainly keen to en-sure that the Government gave complete sup-port to the owners, Pancontinental, and, more particularly, to the people who worked for Pancontinental and relied on that employment for their incomes, and to ensure that that goldmine would continue to operate despite the midnight peggers. Some 120 jobs are involved in this project, together with an investment of $40 million which the member for Murchison-Eyre has referred to, and this mine is very important to the local community. I was therefore very supportive of the roles taken in this matter by the Minister for Minerals and Energy and by the previous Opposition shadow spokesman, Mr Peter Jones. One matter mentioned recently by both the member for Murchison-Eyre and the Deputy Leader of the Opposition is the question of renewal notices, and that matter has certainly been raised with me by prospectors in the gold-fields area and by other people. I understand that-renewal notices were sent out in the past. It is not really a very expensive exercise---1 admit that.
Mr Watt: You had better tell your ministerial colleague sitting next to you.
Mr TAYLOR: At the same time I point out that when renewal notices were sent out and something happened to go wrong, let us say a company may not have renewed its lease, it often blamed Australia Post or the Mines Department for not having received the renewal notice. So we were back where we started. It would seem to me to be very simple in this computer ' age to have a bring-up system for renewals which, of course, is what Pancontinental had, but it did not work in this case. It was Pancontinental's responsibility, as it should be the responsibility of any other person or organisation with a particularly valuable asset, to make sure that it renewed the lease for that asset. That is something Pancontinental should have done and it is something everyone can do. I have a bring-up system in my office, and it works, and it should work with every other organisation. I see no reason whatsoever why they should come whingeing to the Government to pick up a responsibility which is theirs in every way. At the same time I recognised that as ' Pancontinental had made a simple mistake' - was not prepared to see the likes of Wingate take over this mine. At the invitation of the owners of the mine I went out there to look at the situation and to see what land had been pegged. These people had pegged in the middle of the large open pit at Pancontinental. The only way they could have mined that gold deposit was to bring in Chinook helicopters and` take it out by helicopter. There was no way in the world they could have got their trucks or mining equipment in there to mine the ore body because the area around the land they pegged was held by Pancontinental. They were having a big try-on, and I am surprised to hear the member for Murchison-Eyre suggest that Pancontinental should have gone to those people and tried to work out a deal. The Minister interjected and said the deal was to get back what Pancontinental already had for $1.25 million. That is what they wanted for it, and they knew also they could never mine the deposit. They were there to see what they could get out of it. Mr Lightfoot: They had access to it. Mr TAYLOR: They did not have access to it. I went out there and looked at the situation and discussed it with the people involved. Mr Lightfoot: They had access across the land. Mr TAYLOR: No, they did not have access across the lease. The member should know better than that because he has been involved in the mining industry. To show how much courage these particular people had, they have never revealed who was involved. They did not stand up and say, "We are the people behind this company, and we are prepared to show our faces and to show what we are made of'. That is what they are made of? To this day I certainly do not know who was involved; I suppose some other people involved in the mining industry may know. They have never made public who was involved and who was behind that particular nominee company. Mr Watt: Is that not available from the Corporate Affairs Office? Mr TAYLOR: No. One can only obtain the nominee ownership and the nominee directors. One cannot find who is actually behind the Operation. I have never been able to find out I "ho was involved. Mr MacKinnon: Have you tried? Mr TAYLOR: Yes, I have. I should also mention the question of small ' prospectors and where they fit into this Bill. The Minister should be congratulated because having looked at the contents of the Bill before the House I know that one of those small prospectors has been looked after. I refer to Bart Jones who is about 86 or 87, and is a well known character in the mining and pastoral Industries in Kalgoorlie. He faced a similar problem, and the Minister has coped with his problem in this legislation. There is no question in my mind of any apprehension as to the retrospective nature of this legislation. The Minister made it quite clear, and the Opposition at the time made it clear that they would support retrospective legislation, and the people who went into this exercise to get what they could out of Pancontinental have had it made clear to them that they would not see any benefit from the exercise they engaged in. I take this opportunity to sincerely congratulate the Minister for Minerals and Energy on the strong stance he has taken. He has shown those sorts of people what they can expect from our Government if they indulge in these tactics. His is an action that has been applauded by people throughout the eastern goldfields who believe that Pancontinental made a substantial investment in jobs and of money in our region, and they have the backing of this Government and of this Minister.
MR COWAN (Merredin) [12.35 p.m.]: The National Party supports this measure. When we saw the announcement about the area to which most members relate part 2 of the Bill-the Pancontinental goldmining area-we originally thought that as it was be-fore the Supreme Court there was every reason for it to remain there and be determined by the court itself. However, I was fortunate enough to have the Minister make himself and his senior officers available to discuss this measure and why the decision was being made by the Government to validate the leases and then to amend the Mining Act to put beyond doubt similar leases that were held. After that briefing I am perfectly satisfied that the action of the Government is the proper course to take. I thank the Minister for making himself and his staff available, and reiterate that the National Party supports the measure.
MR PARKER (Fremantle-Minister for Minerals and Energy) [12.36 p.m.]: I thank members apposite and my colleague the Minister for Health for their contributions to this debate, and in particular for the general sup-port that has been evidenced---complete in the case of the National Party, and second reading support in the case of the Liberal Party. I would like to take the opportunity of answering the queries raised both by the Deputy Leader of the Opposition and the member for Murchison-Eyre, and also to deal with some of the other issues that were part of this application. Firstly, I reiterate what I said in the Press statement to which the Deputy Leader of the Opposition has referred, that I believed at the time, and still believe, that there is every legal reason I could take the action I did. Yesterday in another instance the Deputy Leader of the Opposition referred to the fact that I had had a number of legal opinions including one from a barrister on whom his leader relies in another matter. I think from memory I had opinions from four private QCs and the Solicitor General, and a couple of other lawyers had written to me with their views. Interestingly enough in this case we had the two authors of the text-book on mining law in this State; Michael Hunt, one of the co-authors, was on the Wingate side, and Michael Lewis the other co-author, was on the Pancontinental side. It is clear there was considerable disagreement among the legal fraternity as to precisely what was the law on the matter. I read all those opinions and spent a whole weekend going through the opinions and the files, and finally made the decision that I had the power to renew the leases. It is important to note what would have happened had I not decided that and had I decided instead that I should introduce legislation to prospectively grant the leases to Pancontinental. I might say that that was the advice of the Solicitor General, to answer the question raised by the Deputy Leader of the Opposition. The Solicitor General said to me that his legal advice as a lawyer was that I should do what was safest in the matter and hold everything up and not grant the lease. I should make sure that the warden did not consider any PL or ML applications before him until the Parliament sat and I put forward legislation to Parliament to grant the leases to Pancontinental. In the meantime, no-one would have had the leases, and nothing would have happened on the site. That is precisely why I did not do that, together with the fact that I believed---
Mr MacKinnon: The Solicitor General was saying you should do it with the legislation in the Parliament, and the legislation would have been the same as now but the leases would not have been issued?
Mr PARKER: That is right. That was essentially his view, and it is a legalistic view. He is the Solicitor General, and he has a certain status. He wanted to make it clear to me that that was his view about the proper legal course, and I think he felt he had his legal reputation to protect. I think he wanted to make it clear that if I disagreed with his legal view, which I ended up doing, and a number of lawyers also did, his legal reputation was not besmirched in the sense that he had not recommended along those lines. Mr MacKinnon: Did the Solicitor General then agree that you had the power to do what you did? Mr PARKER: The Solicitor General was one of six or seven varying opinions to the effect that I did not have the power to do what I did. As was pointed out, Mr Williams QC, Mr Heenan QC and Mr McCusker QC believed that I did have that power. It depends very much on whose view one took.
Mr Taylor: The Solicitor General is not always right.
Mr PARKER: That is right. That is the point about opinions from lawyers. If we have 10 QCs, we will have 11 opinions. On the question " of legality it is interesting to note that when Wingate decided to take action against my decision in the Supreme Court and we sent 'the file to a different section of the Crown Law Department, Crown counsel was firmly of the opinion that what I had done was right and was ' concerned that we should go about it in this way, not because he thought the legislation was wrong, but because he was looking forward to the argument in the Supreme Court. He was = wanting to get his teeth into it because he believed there was no doubt that we would win it. That example shows that it is very difficult to judge these things. Had I taken that advice and played safe---and I could have done so because no-one would have criticised me---no mining operations would have taken place in that area from 3 or 4 January until this legislation passed this Parliament. That would have meant, as the Minister for Health said, that 120 workers would have had to be stood down and the operation could not have continued because such action on n" ' part would have required no leases to be out- : standing. The Minister for Health also pointe4 out that the spokesman at the time indicated ` his support for the course of action I ultimately pursued. I now turn to the specific questions asked of me by the Deputy Leader of the Opposition. The first point relates to why, in each case, the companies failed to renew their leases. The House should have a brief understanding of the situation. Both the Deputy Leader of the opposition and the Leader of the National Party have been given more details by the Parliamentary Counsel of some of the problems associated with the changeover from the 1904 Act to the 1978 Act. The 1904 Act had operated for many years and had been amended on many occasions. Some of the problems were considered as amendments and some had arisen here and in the Legislative Council as a result of concern from the goldfields. When the 1978 Bill came forward many members in this House will recall that it was subject to a great deal of debate and controversy. The Bill was amended twice before the Government of the day could get its own members to support it sufficiently to enable it to be proclaimed and to get the regulations operating. Even in the final analysis there was same feeling that the regulations might be disallowed. There was some last-minute bargaining. Mr MacKinnon: I think the member for South Perth has a vague recollection. Mr PARKER: I think he would have a clear understanding of the way the matter proceeded. We had an Act which, to put it mildly, was a bit of a hotchpotch when it finally came into operation. We had some 37 or 39 different mining leases under the Act. We changed that by creating one type of mining lease. There were a number of different forms of tenement available under the old Act, and provision was made for only four or five different types of tenement altogether. One had a huge range of possibilities and unfortunately not everything could be foreseen. It is a complex area of the law and an area where the diversity of the industry itself, the people in the industry, and the nature of the tenements meant that it was almost impossible to overcome all problems. A transitional anomalies provision was put into the legislation but it was not intended that it apply to every circumstance. It was intended to apply only to procedural difficulties. It has been clearly put to me that those anomalies Provisions in the Act would not have been able to be used in this case. Under the 1904 Act every mining lease was notionally deemed to commence operations on 1 January preceding its award and extend to 21 years after its award. Under the old Act one made application to renew one’s lease after it expired. Under the new Act the lease takes effect from the day of its award and then operates for 21 years from that date. This means that instead of having leases expiring every year on 1 January they will be expiring literally on hundreds of different dates throughout the year. It is required under the Act that one make application to renew the lease before it expires. Understandably there is considerable con-fusion. In the case of Pancontinental, the people from whom they purchased the lease had originally been granted it in about October 1965. The land people in Pancontinental were looking at the lease. The other point I should make is that no lease document was ever issued to Pancontinental. In almost every case where leases were issued in the mid-1960s no lease document was issued. The reason for this was that the huge upsurge that took place in mining tenement applications due to the nickel and iron ore boom meant that the Mines Department, although required by the Act to issue a lease, did not do so simply because it did not have the time to do it. The Act did provide that the lease nevertheless existed even though there was no actual document. There was no document one could turn to which made it clear that the lease must be renewed on a certain date. As the Minister for Health said, Pancontinental had a ring-up system to show them that the lease expired in October. Had it been a lease awarded under the 1978 Act it would have expired in October and application would have been made prior to October to have it renewed. Because of the confusion with the two Acts that was not done. It is interesting, as the member for Murchison-Eyre said, to note what we would have done if he had been a mere prospector and Pancontinental pegged. We did not have that situation but we certainly had a number of prospectors and small people involved in the other two cases. I refer to Mr Bart Jones. Members opposite may be interested to know that he is the father of John Jones who is a very prominent member of the Liberal Party. Mr Jones had a lease east of Kalgoorlie. He is an elderly gentleman who had not come to grips with the terms and conditions of the new Mining Act. He simply omitted to renew the lease for the same reasons as Pancontinental. Donovan had died and his estate was administered by the Public Trustee. I think it is fair to say that the Public Trustee is not an expert on mining law and was not aware of what Donovan needed to do in order to keep the lease operational. Western Collieries Limited, as I understand it, was in a similar position to that of Pancontinental in that it misinterpreted the law. WCL would have had some additional protection in that its operations are subject to an agreement Act of this Parliament giving it greater security of tenure. I refer to the third and fourth questions asked by the Deputy Leader of the Opposition which related to the difference between this case and two others he mentioned. One case was publicised at the time by Geoffrey Hull's company in Norseman. The other was in relation to the Westside Mines Mt Seabrook case. I will deal with the Mt Seabrook case first. The problem with Mt Seabrook was that the mine had been operating illegally to some degree under a mineral claim, rather than under a mining lease under the Act. - One of the things the 1978 Act made crystal clear was that mineral claims, unless transitioned within the time available, would expire after two years. That two years was up in 1983. There is no room for doubt under the Act that anyone who had a mineral claim had to have it transitioned or it would simply expire and die. There was no right of renewal of a mineral claim. Whereas with an old mining lease there was stated within the legislation a right of renewal of the lease, with no doubt whatever that it was to be exercised, in the case of mining claims it was specifically stated that that right chopped out on 31 December 1983, and unless steps were taken to apply for a new mining tenement under the Act, that was the end of it. There was no basis for any legal argument whatsoever; there was no suggestion that the claim might have been able to be extended or continued by me. I agree with the Deputy Leader of the Opposition that it is unfortunate and, in terms of the general principle involved-that is, someone who has invested money in an operation only to see some fly-by-night peggers come along and take it away from them-one wonders whether it ought to be possible to deal with them in some way. Of course, importantly, the reason for section 111 A, which I come to later in more detail, is precisely so that if a future Mt Seabrook situation arises, and given the way in which this Act has operated, and given the diversity of circumstances which could arise, I, or the Minister of the time, will be able to deal with those sorts of issues in exactly the same way that I dealt with Pancontinental, but with-out having to come to the Parliament for validating legislation because quite clearly a '" power will exist there.
As has been pointed out, the Mt Seabrook case is still before the courts, some two or so years after the event. It is still not 100 per cent clear to whom the title belongs, and I understand the case is proceeding to the High Court, In the meantime, not only have workers been stood down or sacked, but a quite substantial market for a very high grade talc deposit has been lost to the State. I understand that that talc was the main base for a certain type of cosmetic manufactured in Europe, and the cosmetics industry there regarded it very highly. It may be that even when title is granted, and to whomever it is granted, it is problematical as to whether we will be able to regain that market entirely. That is obviously not in the State's interests, nor in the country's interests; but legally it seemed to me and to the department that Westside Mines did not have a leg to stand on. There was no basis on which I could do anything about the matter.
As to the Geoffrey Hull circumstances, I cannot remember the precise details of it except that, as I recall the situation, it was more similar to the Westside Mines issue than to the Pancontinental issue. I understand that mining leases were not involved and obviously, in the nature of mining law, there is quite a considerable difference between the security afforded by a lease and that afforded by a licence or claim. A lease is as its name states, and I understand that in this company's case there was less of that security. Secondly, as I recall the circumstances, Mr Hull, did not write to me or ask the Government for any intervention, certainly not at the time it happened, nor until well and truly after the warden and everyone else had considered the other applications. The other applicants had gone before the warden; he had gone to get legal advice and said, "Oh yes, they are probably right", and so just left the matter. By the time Mr Hull raised it, title had in fact been granted to the other parties. It was obviously far too late---well and truly months after the event. Had he come at the time, and had it been in the same category as the Pancontinental matter---and I cannot precisely remember whether it was--- I would have treated it in the same way.
If it had been in the same category as the Westside Mines matter, then at the time he would not have been able to have the matter dealt with by me; but if this Bill is passed then certainly he will be able to do so in the future, and it will be applied consistently to all people
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in the same situation. That answers the questions asked by the Deputy Leader of the Opposition in relation to part II of the legislation.
In relation to part III, the Deputy Leader of the opposition and the member for Murchison-Eyre asked why it was necessary to legislate in such a sweeping manner. The fundamental reason for this is a point I made a little while ago about how important it is to recognise that this Act is a complex Act. The old Act was also a complex Act. There are thousands of leases of different types which will come up from time to time. We cannot envisage all the circumstances which will arise---it is impossible to envisage them---and we must be in a position to deal with all those things without having the damage to the industry and the State that could have resulted from the Pancontinental matter and that did result from the Westside/Seabrook matter.
All that has been done is to provide the same power for the Minister with respect to prospecting licences as currently exists in relation to mining leases under the existing Act. Even when people are pegging for something that they want to mine, there is a difference in the way mining tenements are handled, depending on whether they are leasehold or prospecting licences. The Minister has no discretion to refuse a prospecting licence. In the case of a mining lease or an exploration licence, the Minister can finally review it after it has been through all the warden's proceedings, under sections 75 and 59 of the Act; but that does not apply to prospecting licences. The midnight peggers and others use the prospecting licence mechanism even though they do not want to prospect the land at all---there is no need to because everyone knows the mine is already there: That is why they peg it. They know that by doing that, they will go before a warden and establish a priority, and there is no opportunity for the warden or the Minister to refuse the licence if they peg properly and if they are first in time. They do it deliberately and there is no power to stop them. It is proposed under section 111A to create that power.
The second point made by the Deputy leader of the Opposition is that the Mines Department does not send out renewal notices. The comments made by the Minister for Health is pertinent to this point. We do have many tens of thousands of mining tenements within the department. It would be an extremely expensive exercise to set up. Maybe, once it was set up, it would run automatically with the aid of computers into which data is fed, but to send out renewal notices at the moment would be a problem. The second point made by the Minister for Health is valid; and that was that if there is some foul-up, people would say it was our fault, not theirs, because we did not send out the renewal notices. Thirdly, it was a very deliberately-made Government decision: The mining industry, above all others, is one which asks for less Government, not more. It is one of the most vocal in that regard, as I am sure the Deputy Leader of the Opposition knows. The Opposition, when it was in Government, also made the decision not to send out renewal notices. It was better to assume that anyone who had a title to land which was valuable to them should take the necessary steps to keep that land. We agree with that. I have been approached many times by different lobby groups within the mining industry to change that, even if only with respect to mining leases as opposed to all other forms of mining tenements. I do not have a totally closed mind on that issue, and I am prepared to consider it in some limited circumstances-certainly not in regard to all mining tenements. It is a costly item and certainly not something we would do right at the moment. In the meantime, we can deal with those issues where the people come along and peg in this way, with the passage of this legislation. Sitting suspended from 1.00 to 2.15 p. m. Mr PARKER: The Deputy Leader of the Op-position indicated that he was not opposed to ministerial discretion and indeed that the Op-position when it was in Government, had included very many areas of ministerial discretion in the Mining Act, but he felt that this discretion was very broad. I wish to make a couple of points about ministerial discretion. It is a bit like deregulation; everyone wants it but only when it can help them. The mining industry is no different from any other group. Everybody wants a minimum of ministerial discretion until something goes wrong. Then they want the Minister to have the maximum discretion so that he can sort out their problems for them. I have discovered over the past two years in this portfolio and also in my previous portfolio that what people really want is for the Minister to make the decision they reckon he should make. If that means he should have discretion, he should
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have it, or if it means that he should not have it, then he will not have it. Frankly people are not terribly consistent about those areas. Of course, one group is quite consistent about it. The Deputy Leader of the Opposition pointed to some of the comments about the Act made by the Government when it was in Opposition. Although I was not here at the time those early debates took place, I think a lot of them were probably prompted by the Law Society of Western Australia or by the Association of Mining and Petroleum Lawyers. There is no doubt that there is one group in our community which does not want ministerial discretion and that is lawyers. The reason that lawyers do not want ministerial discretion is that they make a lot of money out of situations in which there is no ministerial discretion. They belong to probably the strongest club or the strongest union in Australia-perhaps with the doctors. They have a very strong view about such issues. If one were to read the submissions of the Law Society or the Association of Mining and Petroleum Lawyers, one would find that they would be opposed very strongly to ministerial discretion. When one looks at what has happened with the Westside talc experience, one can understand why. It has been through about six different court proceedings, some appellate proceedings, and some lower court proceedings, and God knows how many letters have been written and so on by lawyers. I am sure that a substantial sum of money has been expended on all of that whereas absolutely nothing has been done to mine any talc near Meekatharra. By contrast with this Pancontinental matter, a bit of money has probably been spent on lawyers, some of it wasted on lawyers. However, because of the actions I propose in this Bill, that lucrative source of income will dry up. I make absolutely no apologies for that. It is a question of the nature of the discretion and the way in which it can be used. The truth of the matter is that the discretion is not all that broad. Over the years, the courts have consistently read down areas of ministerial discretion to ensure that Ministers act in general terms, according to prudential requirements. Even where there is nothing in the legislation to suggest it, the courts have always found that Ministers, or any person in any ad-ministrative position, do not have the power to capriciously decide an issue which is before them as they feel fit because they do not hap-pen to like the applicant, or that they may have got out in the morning on the wrong side of the bed, or that the applicant is of a different political persuasion. All of those matters have been before the courts over the years and the courts have found consistently that they are not prepared to read "ministerial discretion" in an unfettered way. Even without any fettering in terms of the words that are in the Bill, there is no question that the way in which the Minister of the day would be able to use the discretion which we are proposing to grant in this Bill would be severely limited. Of course, in section 111A we have put two fetters on the Minister's discretion in the legislation. The first one, new subsection (1) (b) (ii), to which the Deputy Leader of the Opposition referred, states that the Minister has to be satisfied on reasonable grounds. That again means that the Minister cannot simply make the decision; there have to be reasonable grounds. Of course, "reasonable grounds" is capable of many definitions, but again, it is something that can be tested in a court of law. If someone is dissatisfied with the Minister's decision or his discretion, he or she can test the grounds for that decision. The decision has also to be in the public interest. Those two preconditions must be met. The discretion has to be seen to be in the public interest. As the Deputy Leader of the Opposition ' pointed out, paragraph (b) (i) already exists, and has been used on many occasions-such as occasions when people have decided to peg Forrest Place, or when Sir Charles Court's place was pegged on a number of occasions, or when some fellow wanted to mine limestone at Mosman Park.
Mr Taylor: Or the War Memorial. Mr PARKER: Yes. All of those sorts o1 things have been pegged from time to time Power exists in the legislation already to deal with those types of occurrences where it is said that the land should not be disturbed. There is no power, however, to deal with such matters where the land is already the subject of mining. One could not reasonably say that Pancontinental pit should not be disturbed cause it was being disturbed. The reason the application was refused was not because the land should be disturbed, but because the application should not be granted on reasonable grounds in the public interest. There is a very substantial fettering of the discretion and it is proposed to use it in a way which is consistent and which will ensure that
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the Government is able to deal with issues as they occur.
The Deputy Leader of the Opposition also asked what the industry's response had been to the legislation. It is not reasonable to say that industry had a copy of the legislation- for a day or two only. In fact, I provided its members with a copy of the legislation on the same day I provided the briefings to the Deputy Leader of the Opposition and the Leader of the National Party. On that same day I invited them to ask for full briefings if they wanted them, but they have not sought them. Neither the Chamber of Mines nor AMEC have sought briefings. I received a response from the Chamber of Mines which indicated that it supported parts 1, 11, and III of the Bill but had some reservations about the amendment to section 111A. If did not mention the sections identified by the Deputy Leader of the Opposition. The letter stated that it thought the Minister already had the power to refuse anything he wanted under section 75 and 59 of the Act. That is the point that was made. It has subsequently been pointed out to them by the Assistant Director General of Mines, Mr Blake, that I do not have that power with respect to prospecting licences. The chamber has now indicated that it does not have any problem with the Bill and is quite happy for it to be passed through this Parliament in its current form. As I have already said, no comment has been received from AMEC. A point was made about the Afro-West experience and I advise the House that it is amazing what a difference moving 20 metres across this House makes to one's perspective of the world. Having not done it for three years or so certainly one does tend to look at things in a different light.
Mr Court: Good admission. Mr PARKER: It is true and I can think of all sorts of things that happened while on the other side of the House when similar experiences have occurred. There is no doubt that this Bill is in the interest of this State and it is the duty of the Government to ensure that major industries are able to operate in an effective way. I certainly am not going to support fly-by-night operators who come into this State simply to disrupt major industries. The Deputy Leader of the Opposition referred to security in the Mines Department and to allegations which have been made. There has been what I describe as scuttlebutt about leaks from the registration division of the department---the sort of thing one, hears around the pubs, especially in the goldfields. I do not know whether any of it is true, but I guess there is always room for some truth in these allegations. However, it is certainly the case in regard to the Pancontinental matter and other leases as well that anyone could have obtained the information quite legally from public record by paying the required fee. Indeed, in this case we can prove that this was done. One specific allegation was made to me and the department concerning the Coolgardie office. I asked the Assistant Director General of Mines who supervises that part of the department's activities to investigate the matter and he satisfied me that there was no obvious cause for concern. With regard to the allegation concerning the Coolgardie office I referred the matter to the CIB to investigate. I asked it to advise me whether it would prefer criminal charges or, if there was not in its view sufficient evidence to do so, whether there was anything of an administrative nature I should do in terms of the running of the department. The CIB went through an exhaustive process and talked to a number of people over many weeks and subsequently advised me that there was no substance to the allegation. It all boiled down to something that had been told to someone else in a hotel and the CIB could not find anyone who knew anything about the information. With regard to the "Spinifex" article which appeared in the April edition of the Mining Monthly, like the Deputy Leader of the Opposition I was concerned about that article as was the department---it was written in a lighthearted way perhaps to protect those concerned from their legal responsibilities. I would not have thought that it would do so, but that may have been the aim, As a result of that article the Assistant Director General of Mines telephoned the editor of the Mining Monthly" and asked him about the article and whether there was any basis for it. He was told by the editor that, "No, there was no basis; it was pub talk." I understand that he has undertaken to publish a statement which will make clear that no allegation was intended against the Mines Department. Given the areas concerned there are only a couple of officers involved and action could very well be taken against the editor by some of the department's female staff. I have not spoken to the editor myself, but based on the discussion he had with the Assistant Director General of Mines, an indication has been given
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that a retraction of that article will be forth-coming. The member for Murchison-Eyre spoke about retrospectivity. I have already dealt with that matter. He also asked, had this lease been held by a prospector and Pancontinental had come along whether the matter would have been dealt with in the same way. The answer is an unequivocal "Yes". In fact, as the schedule shows, we have dealt with each of the leases in precisely the same way, although some were by small prospectors and others by large companies. It would not have mattered who did the overpegging; they would have been dealt with in the same way. The question really is: Were the main objects of the Mining Act being observed? The Mining Act is drawn up in such a way as to make it possible to ensure that people cannot simply hold land as real estate and not mine it. The question which then arises is: What happens when someone in every material respect observes the manner and spirit of the Mining Act but in some minor way fails to do so? That was the case regarding the Pancontinental issue. It would not have mattered whether it was Pancontinental or an anonymous company or a prospector. It would not have been dealt with differently. I have already referred to the issue raised by the member for Murchison-Eyre regarding the difference between this and the Mt Seabrook talc operation. There was a substantial difference, but if the Bill is passed in the form in which it has been presented to the House, there is no doubt that I would be able to deal with the Mt Seabrook case in exactly the same way in the future. I take this opportunity to serve notice to the industry, to people such as Wingate and those who represent and argue on their behalf, that I reject absolutely and in its entirety any suggestion such as that made by the member for Murchison-Eyre that Pancontinental should have negotiated with these people. In fact, Pancontinental was confident in not negotiating with them because I had told the company not to do so. I advised the company that I would deal with the matter and it was not necessary for them to enter into negotiations. I will not tolerate legitimately operating mining companies being held to ransom by blackmailers and by fleas such as the people involved in this situation. These people do not have support in the industry; they seek to use the forms and loopholes to be smart and they try to disrupt the industry for their own material gain.
It was suggested that Pancontinental should have negotiated but, of course, that is what these people wanted. That is why they took that action in the first place-so that they could then approach the company or others and ask to be bought out.
Mr Clarko: Do you think therefore that the system should be changed further? Do you think that the onus it places on people to meet deadlines should be amended?
Mr PARKER: There is an onus on people to meet deadlines but if the member had listened to the rest of the debate he would have heard of the problems created by the two Acts and the different types of leases which involved different dates for renewals. It was a very complex situation. I do not want to go through the whole issue again; I suggest that the member for Karrinyup read Hansard in which he will find the answer to his questions.
I will not negotiate with these people and neither will the mining industry. I will stamp ; them out and do everything in my power to eliminate them; they are bad for the industry and bad for the State. I will not have a bar of them. They can expect no mercy, and no discussions in my dealings with them and I make no apology for that. Perhaps there has been some romance associated with these types of activities in the past and no doubt it was all acceptable during the cowboy days. We are talking about an industry which is fundamental to the basis of this State's development, and I do not intend to allow the mining industry to be held to ransom by such people. I received a telephone call from a friend of mine in the mining industry a few days after the lease was pegged. He told me that he had been offered the lease for $1.25 million. One of the peggers had offered the lease to him for a deposit of $250 000 and a further $1 million when it was confirmed. These peggers are just blackmailers.
Mr Court: Did you peg 46 Waratah Avenue four years ago?
Mr PARKER: No, I have never done that. In fact, the section I have amended in the Act was the section used to protect the member for Nedlands' ancestral home from the ravages Of goldminers. There is no doubt that this is necessary and I do not apologise for the fact that I shall eliminate these people. They deserve to be eliminated and it is about time the mining legislation
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provided the Minister of the day with the means to do so.
I have answered all the points raised by the Deputy Leader of the Opposition and the member for Murchison-Eyre. The Bill is necessary in its entirety, firstly to validate the actions I have already taken and, secondly and more importantly, for the long-term future of the State to ensure that if such situations arise in the future we are able to deal with them. I make it clear that if any industry will disappear it is this industry of midnight peggers, at least during the time that I am in charge of the Mining Act. Question put and passed. Bill read a second time.
In Committee The Chairman of Committees (Mr Burkett) in the Chair; Mr Parker (Minister for Minerals and Energy) in charge of the Bill. Clauses 1 to 6 put and passed. Clause 7: Section 111A amended-
Mr MacKINNON: The Opposition does not disagree with paragraph (a) of this amending clause. Unless someone can convince me otherwise I understand that paragraph (a) completely covers the situation involving Pancontinental. The Minister said that paragraph (b) would help to solve that situation in the future. However, if a Pancontinental-type situation occurred beyond any reasonable doubt paragraph (a) will enable the Minister to act. The Opposition has no objection to paragraph (b) (i) because if that paragraph is read excluding subparagraph (ii) it is virtually the same as section 111A of the Act. It seems that the amending paragraph (b) (ii) broadens the Impact of the legislation. The Minister said that it would enable him to deal with situations like the Mt Seabrook case but that was not mentioned in his second reading speech. The Opposition was under the impression and it had been led to believe that this legislation was introduced merely to handle the situation brought about by the Pancontinental overpegging.. A simple reading of the Bill indicates that the Minister's powers are broadened quite significantly and it is not good enough for the Minister to say that he has reasonable grounds and it is in the public's interest for him to make this amendment. It is not sufficient to say that if people disagree they can go to court and deal with the matter at law. That is the very situation he is trying to overcome in the first place. I do not accept the Minister's explanation that this is the case. It is totally unreasonable. I ask the Minister for a further explanation. Mr PARKER: A wide variety of circumstances can arise under the mining legislation. It is complex legislation. Many of the tenements were awarded under the new Act and even in those cases some confusion can arise. Many more tenements were awarded originally under the 1904 Act, but they are now deemed to be tenements under the 1978 Act. Alternatively, in some cases, a transition has occurred so that they are tenements under the 1978 Act. Under the 1904 Act there were 47 different types of mineral tenements of which 37 or 38 were mining leases, a situation which was changed so that now there are four of five different mining tenement types. The reason I mentioned Mt Seabrook as one of the matters which would be capable of being dealt with, was that there was no doubt in terms of the legal rights involved. An Opposition member-I think it was the member for Murchison-Eyre-said that at different stages of these proceedings the Pancontinental land was vacant Crown land. That is his opinion. It is the opinion of others that the land was subject to the lease. However, I agree that the position was arguable. Certain provisions existed in the Act which enabled me to do certain things and, as the Deputy Leader of the Opposition said, that event would be capable of being dealt with under clause 7, proposed new subsection (1) (a). However, there is no doubt in the case of Westside that at the time the pegging took place, the people-I think it was Tortola---who overpegged the Mt Seabrook mine, had a prospecting licence. In the last two years many cases have arisen and decisions have been made in respect of the Mt Seabrook mine. One decision which has been upheld consistently-and I agree with it in terms of the aspects of the law involved-is the decision by Mr Justice Brinsden in the Supreme Court of Australia. That decision was to the effect that not only did the Minister have no discretion, but also the warden had no discretion in respect of the Mt Seabrook mine. One should remember that it is only in the case of prospecting licences that this problem arises, because in the final analysis the Minister may reject a mining lease or exploration licence
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anyhow. Therefore, we are talking mainly only about prospecting licences being affected here. In the case of the prospecting licence in respect of Mt Seabrook, Mr Justice Brinsden found-and I think he was right-that not only did the Minister have no discretion, but also the warden did not have discretion, because if it could be proved that the people who did the pegging had done it properly and that they were first in time, the warden had no option but to grant them the prospecting licence. So it is not as if discretion is vested in the warden or the Minister. In that situation the warden had to grant a prospecting licence to those fly-by-night overpeggers. That is the sort of situation which may arise and which can be dealt with. However, the important aspect is that circumstances arise in which it can be said clearly that the land should not be disturbed and that is the purpose for the introduction of proposed new subsection (1). I shall give an example: No. 46 Waratah Avenue is a case in point where it could be said, for very good reasons-probably due to the upbringing and preservation of sanity of the member for Nedlands-that it was a good idea to prevent people moving around outside his bedroom with picks, shovels, and earthmoving equipment. Therefore, the land should not be disturbed. I am pleased the Minister of the day was able to take that action for the benefit of the member for Nedlands. However, in other circumstances, the position may not be so clear and it may not be so easy to say that the land should not be disturbed. For example, what would be the position if the member for Nedlands' father were building a new house at 46 Waratah Avenue? He might be excavating to put down foundations. In those circumstances, one could not say that the land may not be disturbed. Obviously the land is being disturbed. There are other equally valid reasons for saying the land should not be disturbed. For example, what would be the position if some sort of public work were being undertaken? We have the current controversy in respect of the Marmion Avenue extension. One could not say that if someone pegged that as a mining lease-
Mr Clarko: There is no indication that that will not be done tomorrow.
Mr Court: You have just upset the Chairman of Committees.
Mr PARKER: I can assure you, Mr Chair-man, that because it is not vacant Crown land I do have some other powers. It is vested in another Minister, but I have some rights in the matter which would prevent anything being done. However, what would be the position if this were Crown land and it was being excavated by a contractor? One could not refuse to grant a prospecting licence, because it is not true to say the land is not being disturbed; it is being disturbed. The whole point of the exercise is that under the mining laws of this State the variety of applications, individuals, and circumstances which arise are so diverse that they must be dealt with by a clause of this nature. This is really a sketch clause which will provide a framework within which the Minister and the Government of the day may choose to act, bearing in mind the constraints I referred to earlier, to ensure the law operates. Gradually over time a body of precedent will be built up, as occurs with all laws, a body which will demonstrate precisely how the provision should operate. I shall give members a few undertakings. Firstly, I undertake that the provision will not be used in any capricious sense. Quite apart from the fact that if the provision were used in a capricious sense a court may find against it, because of the way in which I administer my Ministry---I think there is a reasonable level of support for that. I recognise it is not in the interests of the mining industry that the provision should be exercised in that way. Anyway, the courts would probably overturn the capricious exercise of that discretion. Secondly, it will not be used for any political purposes. Once again, the courts would probably overturn the use of the provision in that way. The provision is to be used purely to protect the genuine operators in the industry against these fleas and ratbags who come along and try to overpeg. Quite apart from the legal constraints upon e Minister in exercising such a power, obviously there is also the political constraint. That is apparent to any Minister who exercises such a power in a way which will not achieve the general acclaim of the industry, maybe not of the individuals involved. The Minister should be seen to be fair and reasonable in his actions by the industry as a whole. Any Minister who does not comply with that will find himself well and truly on the outer with the industry, ultimately with his colleagues, and, in the final analysis, with the public
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Therefore, there is no incentive or reason that a Minister would want to use such a provision in that way. It is certainly my view that the clause should remain unaltered.
Mr MacKINNON: I appreciate the Minister's explanation, but it was interesting to note that he did not answer the question I raised. That was, would the clause, without the inclusion of proposed new paragraph (b) (ii) cover the Pancontinental situation. The answer to that is "Yes".
Mr Parker: Yes. Mr MacKINNON: And that was what the Minister asked us to come to the Parliament to approve.
Mr Parker: But it would not cover the Mt Seabrook situation.
Mr MacKINNON: That is the point. The Minister then says, "It does not cover the Mt Seabrook situation". He then started to draw red herrings across the trail using the examples of' 46 Waratah Avenue and the Marmion Avenue extension to justify such a significant change to the Mining Act. We object to that, firstly, because that was not explained to us in the first place when the legislation was brought into the Parliament and, secondly, because if such a fundamental change is to be made we should have been told about it. I appreciate the Minister's explanation. It all sounds very logical. However, I do not know much about the Mining Act and I do not know that his explanation is accurate. I am not prepared to make a decision of such a fundamental nature here today when this amend was not foreshadowed and I have not had the time to discuss it properly with the people involved in the industry. I move an amendment---
Page 6, lines 12 and 13-To delete all words after the word "disturbed" down to and including the word “granted".
Thus paragraph (b) of clause 7 would retain the same as that in the Act.
Mr PARKER: I simply wish to again indicate the Government is totally opposed to this amendment. It would defeat many of the purposes of the particular part of this Bill which intends to ensure that such situations will not be permitted to occur in the future. I am sorry that the Deputy Leader of the Opposition feels that he was not adequately briefed in relation the specificity of this amendment.
Mr MacKinnon: He understands it quite clearly.
Mr PARKER: I think he would accept that this sort of amendment is the sort that would be needed to deal with a Westside or Seabrook talc deposit type of situation.
Mr MacKinnon: Was that matter mentioned in your second reading speech? Was it mentioned anywhere else prior to my raising it here today? Of course it was not.
Mr PARKER: I mentioned the general issue and I mentioned we were seeking to debate the legislation in this--- Mr MacKinnon: Specifically to handle the Pancontinental type situation. It has nothing to do with it.
Mr PARKER: If that is a criticism, I accept it as a criticism, but the important thing is that we have a Bill which seeks to improve the law of this State to enable the Government of the day, whichever party happens to be in power, to deal with all situations which damage the industry. I think everyone would agree that this situation could damage the industry. I therefore oppose the amendment and commend to the Committee the original proposition.
Mr COWAN: The National Party does not support this amendment. Subparagraph (i) gives the Minister the right to approve the granting of such an application, and just as he has the right to approve it, we believe he should have the ability to refuse such an application. Amendment put and a division taken with the following result-
Ayes 14 Mr Bradshaw Mr MacKinnon Mr Cash Mr Rushton Mr Clarko Mr Spriggs Mr Court Mr Thompson Mr Grayden Mr Tubby Mr Lewis Mr Watt Mr Lightfoot Mr Williams (Teller) Noes 31 Mrs Beggs Mr Parker Mr Beriram Mr Pearce Mr Bridge Mr Read Mr Bryce Mr Schell Mr Terry Burke Mr D. L. Smith Mr Burkett Mr P.J.Smith Mr Carr Mr Stephens Mr Cowan Mr Taylor Mr Peter Dowding Mr Thomas Dr Gallop Mr Tonkin Mr Grill Mr Trenorden Mrs Henderson Mrs Watkins Mr Gordon Hill Dr Watson Dr Lawrence Mr Wilson Mr Marlborough Mrs Buchanan Mr Nalder (Teller)
Page 198
Pairs Ayes Noes Mr Laurance Mr Brian Burke Mr Crane Mr Hodge Mr Hassell Mr Troy Mr Blaikie Mr Tom Jones Mr Mensaros Mr Evans Amendment thus negatived. Clause put and passed.
Title put and passed. Report
Bill reported, without amendment, and the report adopted. Third Reading MR PARKER (Fremantle---Minister for Minerals arid Energy) [2.57 p.m.]: I move--- That the Bill be now read a third time. MR MacKINNON (Murdoch-Deputy Leader of the Opposition) [2.58 p.m.]: I wish to raise briefly a final matter in relation to the legislation. I refer to the comment the Minister made about the "spinifex" article in Mining Monthly and internal security within the Mines Department. It is not a matter that the Opposition would pass over lightly and I did not raise it lightly in the Parliament. I have spoken to one of the proprietors of Mining Monthly magazine who assured me, as I indicated earlier in the debate, that the facts surrounding that article are largely accurate and that consequently no retraction will be printed in Mining Monthly. Therefore it is incumbent upon the Minister to give us an assurance that he will, personally and quickly, investigate the validity or otherwise of that article and, if necessary, he should give an undertaking to expedite the setting up of an investigation within his department to ensure that this type of situation does not arise again. It is a serious matter, even though the article is written in a lighthearted manner. As I said before, I did not only take the words of the article; I bothered to check them out before I raised this matter in the Parliament. I would like the Minister to give us that assurance and also an assurance that he will report back to the House on the outcome of those inquiries.
MR PARKER (Fremantle-Minister for Minerals and Energy) [2.59 p.m.]: There are many trade journals on the mining industry. Mining Monthly is one of the better ones, but many people write under assumed names and they write in allegorical form. If one were to follow up every such example, or believe, prima facie, that such example was an accurate imputation against public servants who have never ostensibly harmed anybody, then I think one would be following many rabbits down many burrows. If people have concerns or problems about the operation of my department or any other department, they should raise them with me. I indicated earlier that on the only occasion when someone did make a substantial allegation---which was, by the way, a different allegation from that which was made in the Mining Monthly article---I had it followed up expeditiously by the CIB, who were the appropriate people to follow it up. Given that the Deputy Leader of Opposition has raised this matter, I am prepared to speak personally to the editor and proprietor of the Mining Monthly. As I said earlier, so far Mr Blake has spoken to him. If there is any substance to the allegation, or if there is ant basis for it, I will have the matter investigated, but I will not subject the public servants of the Mines Department to an investigation just because someone anonymously prints an article like that. If I am given any substance or basis or further particulars about it, I will have it followed up, but anyone can write those sorts of articles and it is a very cowardly way of proceeding. However, if there is any basis to the allegations I will follow them up, as it is in my interests and the interests of the Government to do so, and I will certainly report back to the Deputy Leader of the opposition about that. I will not follow up every anonymous writer in every journal in Australia. A lot of this stuff is bar talk. If the Minister for Health were here he would be able to tell us how many hotels there are in Kalgoorlie. There are a goodly number, and I have tried a few of them myself. With that number of hotels, there is probably a hell of a lot of gossip that goes on, as in any industry. There is gossip and tittle-tattle, and that is what the article amounts to. If there is anything more to it than that I will follow it up. I thank the House for its support of this measure, and I thank the Opposition and the National Party for agreeing to consider it so expeditiously at the beginning of this session because of its importance to the industry to one particular operation in this State. Question put and passed. Bill read a third time and transmitted to the Council.
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