Rethinking the 1979 Offshore Constitutional Settlement

Address by Justice Rares 16 July 2010

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1. I have the pleasure of Chairing the lunchtime session on Fisheries, Offshore Resources, and the Proposed Integrated Oceans Management Act. No doubt topics considered to be ‘fishy’ business.

2. In 1975, the High Court of Australia in New South Wales v The Commonwealth (1975) 135 CLR 337 (Seas and Submerged Lands Act 1973 Case) found that the Seas and Submerged Lands Act 1973 was within the Commonwealth’s legislative power under s 51(xxix) of the Constitution. The Act provided that sovereignty in respect of the territorial sea and the airspace over it and its bed and subsoil is vested in the Crown in right of the Commonwealth. It also provided that the rights in the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources vested in and is exercisable by the Crown in right of the Commonwealth. 

3. Thus, the question of offshore jurisdiction was settled, in the context of determining who had the rights to explore and exploit offshore oil and gas.

4. However, as Dr Michael White recognised in his book, it did not suit the Commonwealth to have to administer the small craft and other detail relating to activities close inshore, so the OCS was agreed upon.

5. In fact, the decision also threw doubts on the adequacy of State extraterritorial powers where sheer practicalities of the matter favour State administration, rather than Commonwealth administration, in the absence of overriding national or international considerations. Port facilities are one example, and the enforcement of general criminal law in the territorial sea is another (as recognised by the Crimes at Sea Act 2000 (Cth)).

Presentation 1


Dr Rachel Baird

Speaker biography – Dr Rachel Baird

1. Senior lecturer, USQ, Consultant Clayton Utz, RAAF Specialist Reserve Lawyer.

2. Rachel's research interest is firmly centred on the law of the sea with and environmental and political focus. She has ventured into Antarctic governance, the politics of whaling, IUU fishing, ocean warming and maritime piracy.

3. She completed her PhD at Melbourne University in 2006 whilst working as a sessional lecturer. Since then Rachel has worked at the UQ TC Beirne School of Law and now the new USQ Law School. Rachel worked full time as a practicing lawyer in government (Defence and AGS) and private practice before moving across to academia and retains links with both sectors through reserve work and consulting.

4. Through consulting Rachel stays abreast of federal and state environmental law and marine resources governance in Australian. She is currently writing chapters for two edited texts (on enforcement action in Australia's Fishing Zone and Antarctic governance) as well as jointly editing and contributing to a text with Professor Don Rothwell on Australian Coastal and Marine Law.

Topic Introduction

1. The Coastal Waters (State Powers) Act 1980 (Cth) and Coastal Waters (State Title) Act 1980 (Cth) enables the states to exercise the power they traditionally enjoyed over the sea and seabed from the lower water mark to 3 n.m. States could also enact fisheries laws with effect beyond their coastal waters, but within the ‘adjacent area’ if there is an agreement with the Commonwealth.

2. I start by saying that the close examination of the laws governing the fishing industry is of great importance to Australia. Fish are a multi-billion dollar industry for Australia. They are our fifth largest food producing industry in fact– worth more than $2.1 billion to our economy every year.

3. The legal basis of the OCS was scrutinized in the High Court in Port MacDonnell Professional Fishermen’s Association v South Australia (1989) 168 CLR 340. The case concerned the arrangement between the Commonwealth and South Australia which provided that SA would control rock lobster fishing up to 200 nm from its coast. The fishery included a wedge-shaped area of more than 2000 square kilometres on the Victorian-South Australian border. The HC held that the Fisheries Act 1982 (SA) applied to areas beyond its territory as set out in the Commonwealth-state agreement, and that the s 5© of the Coastal Waters (State Powers) Act 1980 (Cth) was validly made under s 51(xxxviii) of the Constitution. However, the court held that SA fisheries law did not apply to the area of the fishery that lay in VIC adjacent area.

4. It is desirable to encourage a coherent and consistent regulatory framework to govern such a major industry. Although, it appears that this has yet to be achieved.

5. Indeed, a major component of the Offshore Constitutional Settlement is the cooperative arrangement for fisheries: it aimed to eliminate the 3 n.m. limit as a jurisdictional border for fisheries management. It also ensures that states maintained fisheries management responsibilities.

6. Initially, the Commonwealth had declared that the new arrangements ‘will enable a single fishery to be regulated by one set of laws, Commonwealth or State, as agreed between the Commonwealth and the States or States concerned’.

7. The first concluded OCS fisheries agreement was in 1986 for the Bass Strait Scallop Fishery. Responsibility went to the Cth, with TAS and VIC retaining authority over areas within 20 miles of their coasts. This arrangement, which provides three separate jurisdictions for the management of one species, does not reflect the principle of single fishery jurisdiction that was at the core of the OCS.

8. OCS has largely avoided questions of inconsistency between overlapping laws because most commercial fisheries are managed solely by one jurisdiction. It therefore has enabled an effective framework for managing fisheries on a fishery by fishery basis, however, may still be ineffective in areas of overlap: for example, gummy and school shark are yet to be brought under an OCS agreement in NSW. They continue to be managed separately in the New South Wales Ocean Trap and Line Fishery and the Commonwealth Southern and Eastern Scalefish and Shark Fishery.[1]

9. Attempts have been made to simplify the three-way split management of the Bass Strait Scallop Fishery, which is governed by the Commonwealth, VIC and NSW. Against the trend of single jurisdiction management embodied in the OCS, in 2006, the Fisheries Management Act 1991 (Cth) was amended such that an arrangement with two or more states may provide that the fishery is to be managed in accordance with the law of one or more of the states concerned or in accordance with the law of the Commonwealth and the law of one or more of the states concerned.

Presentation 2

Offshore resources

Fiona Brotherton

Speaker biography – Fiona Brotherton

1. Fiona Brotherton is a Senior General Counsel in the Office of General Counsel of the Australian Government Solicitor (Canberra Office). Fiona has advised extensively on the Commonwealth's offshore resources legislation, particularly on the former Petroleum (Submerged Lands) Act 1967, now the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGSA), and the regulations under those Acts, as well as the related annual fees, royalty and taxing Acts.

2. Fiona was the legal adviser to the policy team in the former Department of Industry, Tourism and Resources who established the National Offshore Petroleum Safety Authority. Fiona was responsible for the constitutional design of the Commonwealth, State and NT legislation that conferred functions and powers on NOPSA in Commonwealth, State and NT waters, and for the cost recovery regime that funds NOPSA's operations. She was also the principal legal adviser on the amendments to the OPGGSA that established the regime of offshore greenhouse gas injection and storage titles.

3. She is at present outposted to the Offshore Resources Branch in the Department of Resources, Energy and Tourism.

Topic Introduction

4. Fiona will be talking about the rewrite of the Petroleum (Submerged Lands) Act 1967, now the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The latter applies between the outer limit of the 3n.m. territorial sea and the outer limit of the continental shelf.

5. In particular, I believe she will be discussing the difficulty between the granting of title and licences; and those responsible for the day to day administration of titleholders, that is, safety, environmental protection, and structural integrity. As I described before, one of the lessons from the Seas and Submerged Lands Case and the OCS is that the Commonwealth may not be in the best position to manage small craft and day-to-day activities.

6. No doubt, the 1988 Piper Alpha gas production platform accident, in which 165 people were killed, and the 2009 Montara Wellhed Platform fire, stress the importance of safety management in offshore resources.

7. I recently decided a case of Strong Wise v Esso [2010] FCA 240 whereby a Chinese tanker ruptured a natural gas pipeline in Port Phillip Bay. In such a situation, clear definition of authority and management of the crisis would assist as people seldom have the luxury of time to determine who is responsible. I discussed in Strong Wise v Esso at [129] that there was confusion between who had authority to pilot the ship at the time it began dragging anchor in bad weather towards the pipeline. I can only imagine in such circumstances that clearly defined responsibilities would assist in dealing with the matter. It was unfortunate that in that instance, it was not clear whether the master had authority to move the ship in an emergency where there was compulsory pilotage in the bay.

8. I imagine that the last thing you want to have happen when a large cloud of gas or oil is escaping the water surface, or exploding, beneath your ship is for the authorities to be unclear on who is managing safety or has authority.

9. Another point I wish to make is in relation to McKerracher J’s recent judgment in Apache Northwest Pty Ltd v Agostini (2009) 177 FCR 449, that is, the close integration between State and Commonwealth control over any given pipeline may operate jointly for “convenience” or practicality, but when looking at the legitimacy of any inquiry into accidents, such considerations must give way to the rule of law.

10. McKerracher J accepted at [127], that there is undoubtedly a high desirability of achieving safety, security and reliability in relation to gas and petroleum pipelines. The case concerned the series of gas explosions occurred at Varanus Island off the North West coast of Western Australia on 3 June 2008.

11. In 2008, the State announced a series of notices given under s 63 of the Petroleum Pipelines Act 1969 (WA) and Apache supplied a substantial body of documents. In 2009, the Commonwealth Government, together with the State announced the final form of a further inquiry. This 2009 inquiry had no power to compel the production of documents, unlike the 2008 s 63 inquiry. The State provided to the Panel of the 2009 inquiry the information which had been provided (under compulsion) by Apache to State inspectors in the 2008 inquiry.

12. His Honour found that the provision of that information to the 2009 Panel was beyond the scope of the State Act, though he did recognise that there was a context of integrated State and Commonwealth management and control over any given pipeline.

Presentation 3

The proposed 'Integrated Oceans Management Act': Difficulties integrating commonwealth and state offshore activities

Chris Smyth

Speaker biography – Chris Smyth

1. Our next speaker is Chris Smyth is the Healthy Oceans Campaigner at the Australian Conservation Foundation where his work currently focuses on the establishment of marine protected areas, ecosystem-based regional marine planning, national marine legislative reform and sustainable seafood. This is the second time Chris has worked for ACF, during the first in the 1990s he edited ACF's membership magazine, Habitat, produced ACF's diaries and at different times carried out the roles of marketing manager and general manager.

2. Prior to his return to ACF Chris worked for three years at the Victorian National Parks Association coordinating its campaign for marine national parks in Victoria and an integrated national park at Point Nepean, and twelve months managing education programs for a northern Melbourne urban creek management committee.

3. Chris's interest in marine and coastal management and planning was sparked at university when he directed a research project team's work on Victorian coastal management and planning, and continued during his time as a geography teacher in several Victorian regional coastal communities where he was also closely involved in local environment groups. Over time he developed skills in research, editing, writing and publishing and these he further honed in the early 1990s at the Gould League of Victoria as its editor and marketing coordinator and as one of its environmental education consultants.

Topic Introduction

4. The difficulties of integrating Commonwealth and State offshore activities have always been a challenge for the legislature to get right. In fact, it must do so mindful of the provisions of the Constitution. 

5. The proposed ‘Integrated Oceans Management Act’ by the Australian Conservation Fund, or what I understand to be also the ‘Oceans Act’ attempts to address the complex statutory and regulatory framework for oceans planning and management based on multiple jurisdictions and sector-based management. Its implementation would force changes to that framework.

6. The Marine legislative review, a detailed review of 250 existing Commonwealth and state marine-related environmental laws and regulations that apply to the conservation, fisheries, petroleum, shipping and tourism sectors. The Review concluded that the statutes were inadequate in providing, inter alia, integrated marine management.

7. Integrated management, or even management of offshore activities in Federations or jurisdictions with a separate municipality and larger national body of government is challenging. For the ocean’s are the concern of the nation, however, for practicality reasons, they are best managed on a micro level by local authorities.

Presentation 4

States' perspective on the offshore constitutional settlement

Tony Keyes

Speaker biography

1. Our next speaker Tony Keyes is Senior Deputy Crown Solicitor (Commercial and Public Law) with Crown Law. He holds degrees in arts and law. He has worked as a solicitor in private practice and the community sector, and in a variety of Queensland public sector agencies, including the Department of the Premier and Cabinet, the former Criminal Justice Commission, the Ombudsman’s office and the Law Reform Commission. He was a solicitor with the Central Land Council in Alice Springs for five years.

Topic Introduction


Presentation 5


Michael White QC

Speaker biography - Michael White

1. Michael White joined the Royal Australian Navy at a young age and, after six years of study and training, he served as a seaman officer for most of the next eleven years in ships and submarines in the Asian, Pacific and European waters. He resigned to study law and, after obtaining degrees in Commerce and Law at the University of Queensland, practiced at the Queensland Bar, taking silk in 1988. Later he was awarded a Doctorate of Philosophy (in law) with his research thesis on marine pollution from ships.

2. From 1999 to 2005 he was a full time academic at the T.C. Beirne School of Law, as Reader in Law and Executive Director of the Centre for Maritime Law, now the Marine and Shipping Law Unit. He retired from the staff in 2004 and is now an Adjunct Professor. He has lectured on many areas of maritime law and written and edited numerous articles and books. He is married to Margaret White and they have three adult married children.

[1] Warwick Gullet, ‘Fisheries Law in Australia’, LexisNexis Butterworths, 2008 at p 52

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