Offshore Constitutional Settlement

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The Offshore Constitutional Settlement (OCS) is an agreement between the Commonwealth of Australia and the States which provides the basis for an agreed division of powers between the Commonwealth and the States in relation to coastal waters and in relation to certain other matters including the regulation of shipping and navigation, offshore petroleum exploration, crimes at sea, and fisheries. [1]

Contents

History

Convention on Territorial Sea and Contiguous Zone 1958

The United Nations treaty, the Convention on the Territorial Sea and the Contiguous Zone defines "the contiguous zone" as not extending beyond "twelve miles from which the baseline from which the breadth of the territorial sea is measured." [2]

Seas and Submerged Lands Act 1973

The Seas and Submerged Lands Act 1973 incorporates the Convention on Territorial Sea and Contiguous Zone 1958 in domestic law. [3]

New South Wales and Others v. Commonwealth of Australia

The six states took the federal Government to court over the Seas and Submerged Lands Act 1973. [4] [5] [6] The High Court of Australia upheld the act and asserted that control over the coastal waters was in the hands of the Commonwealth. [7]

Settlement

Premiers Conference, 1979

On 29 June 1979, the Commonwealth and the states completed an agreement called the "Offshore constitutional settlement". [8]

The agreement outlines several different points of the agreement:

Coastal Waters (State Powers) Act 1980

The Coastal Waters (State Powers) Act 1980 vests the states the power to legislate within 3 nautical miles. [9]

Coastal Waters (State Title) Act 1980

The Coastal Waters (State Title) Act 1980 vests the states the right and title to the property within 3 nautical miles. [10]

Coastal Waters (Northern Territory Powers) Act 1980

The Coastal Waters (Northern Territory Powers) Act 1980 vests the Northern Territory the title of within 3 nautical miles. [11]

Coastal Waters (Northern Territory Title) Act 1980

The Coastal Waters (Northern Territory Title) Act 1980 vests the Northern Territory the right and title to the property within 3 nautical miles. [12]

Further developmennts

Under the Crimes at Sea Act 2000 (Cth), the criminal law of each state applies to all 12 miles of the territorial sea. [13] [14]

Discussion

Until the settlement there had never been any national oceans policy. [15] The OCS has been described as reflecting Australia's "inherently federal public policy-making". [16]

International comparison

The settlement has drawn comparisons to the United States' and Canada's federalist arrangements. [17] Unlike Australia, the Canadian federal government has attempted to assert a 12-mile territorial sea, and only Newfoundland and Labrador has been able to assert a 3-mile sea. [17] The equivalent arrangements for the United States are governed by the Submerged Lands Act. [18]

Criticism

The settlement has been described as an "intergovernmental arrangement to sidestep an unpopular High Court decision" rather than a constitutional settlement. [19]

The situation created by the settlement has been criticised as a "muddle" of state and Northern Territory laws. [20]

See also

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References

  1. ↑ "Offshore Constitutional Settlement". Attorney-General's Department. Australian Government. Archived from the original on 2023-03-27. Retrieved 2024-09-17.
  2. ↑ "Convention on the Territorial Sea and the Contiguous Zone" (Convention). United Nations. 1958-04-29. p. 8.
  3. ↑ Seas and Submerged Lands Act 1973 (Cth)
  4. ↑ "JUD/135CLR337/JM:Stephen" "New South Wales and Others v Commonwealth". Australian Taxation Office. Archived from the original on 2024-09-17. Retrieved 2024-09-17.
  5. ↑ "JUD/135CLR337/JM:Stephen" "New South Wales and Others v Commonwealth". Australian Taxation Office. Archived from the original on 2024-09-17. Retrieved 2024-09-17.
  6. ↑ "New South Wales and Others v. Commonwealth of Australia". International Law Reports. 51: 89–217. 2021-01-01 [1975-12-17]. doi:10.1017/CBO9781316151785.015. ISSN   0309-0671 . Retrieved 2024-09-17.
  7. ↑ "Offshore constitutional settlement: A milestone in co-operative federalism" (Document). Attorney-General's Department. 1980.
  8. ↑ "Offshore constitutional settlement" (PDF). Attorney-General's Department. 1980. Archived (PDF) from the original on 2022-05-27. Retrieved 2024-09-17.
  9. ↑ Coastal Waters (State Powers) Act 1980 (Cth)
  10. ↑ Coastal Waters (State Title) Act 1980 (Cth)
  11. ↑ Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
  12. ↑ Coastal Waters (Northern Territory Title) Act 1980 (Cth)
  13. ↑ White, Michael (2022-02-10). "Australia's Offshore Legal Jurisdiction: Current Situation". Australian and New Zealand Maritime Law Journal. 25 (1): 19–34.
  14. ↑ Crimes at Sea Act 2000 (Cth)
  15. ↑ Vince, Joanna; Smith, Anthony D.M.; Sainsbury, Keith. J.; Cresswell, Ian David; Smith, David C.; Haward, Marcus (2015-03-25). "Australia׳s Oceans Policy: Past, present and future". Marine Policy. 57: 1–8. doi:10.1016/j.marpol.2015.02.014. ISSN   0308-597X.
  16. ↑ Geoffrey, Marcus (November 1992). Federalism and the Australian Offshore Constitutional Settlement (PhD thesis). University of Tasmania. doi:10.25959/23233163.v1 . Retrieved 2024-09-17.
  17. 1 2 Opeskin, Brian R.; Rothwell, Donald R. (2009-11-16). "Australia's territorial sea: International and federal implications of its extension to 12 miles". Ocean Development & International Law. 22 (4): 395–431. doi:10.1080/00908329109545967. ISSN   0090-8320.
  18. ↑ Description of the Submerged Lands Act; Federal Wildlife Laws Handbook (University of New Mexico)
  19. ↑ Haward, Marcus (1989-10-01). "The Australian offshore constitutional settlement". Marine Policy. 13 (4): 334–348. doi:10.1016/0308-597X(89)90018-3. ISSN   0308-597X.
  20. ↑ White, Michael; Gaskell, Nick (2015-06-02). "Australia's Offshore Constitutional Law: Time for Revision?". Australian Law Journal . 85 (8): 504–520. SSRN   2611454 – via SSN.
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