Science and Research
John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157
This appendix is from Environment Australia 1998, Australia's Oceans Policy, Environment Australia, Canberra; Appendix 2. Electronic copies are available at http://www.oceans.gov.au/content_policy_v1/page_013.jsp.
Consistent with the provisions of international law, Australia has declared a range of maritime zones under the Seas and Submerged Lands Act 1973. The outer limits of all of these zones are measured from the territorial sea baseline, located for the most part at the low-water line along the coast. However, it also consists of bay and river closing lines and some straight baselines between the mainland and adjacent islands and across parts of the coast that are deeply indented.
The zones, which are measured both from mainland Australia and from islands forming part of Australia, including the external Territories, are as follows:
The territorial sea -The outer limit of the territorial sea is 12 nautical miles (nm) seaward of the baseline. Australia has sovereignty over the territorial waters. It may therefore impose comprehensive controls in this area, with the one major exception that it must respect the right of innocent passage of foreign vessels.
The contiguous zone -This is the area between 12 nautical miles and 24 nautical miles seaward of the baseline. In the contiguous zone, Australia can take limited enforcement measures in relation to customs, fiscal, sanitary and immigration matters.
The Exclusive Economic Zone -This is the area between the lines 12 nautical miles and 200 nautical miles seaward of the territorial sea baselines. In this area Australia has the right to explore and exploit living and non-living resources, and the concomitant obligation to protect and conserve the marine environment.
The continental shelf - The area between 12 nautical miles and 200 nautical miles seaward of the territorial sea baseline (that is, it covers much of the same area as the Exclusive Economic Zone) and any areas of physical continental shelf beyond 200 nautical miles. Australia has the right to explore and exploit the living and non-living resources of the shelf. A diagram of our maritime zones is [below].
An Australian Fishing Zone (AFZ) was declared in 1979 and is now under the Fisheries Management Act 1991. The zone is the area of waters between three nautical miles and 200 nautical miles seaward of the baselines. Waters off the Australian Antarctic Territory were excepted from the AFZ in 1979 for foreign and national vessels. These waters are regulated in accordance with the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).
In the early 1970s the States challenged the Commonwealth's assertion of sovereignty under the Seas and Submerged Lands Act 1973 over the then three nautical mile territorial sea. The High Court upheld the Commonwealth's assertion of sovereignty in the Seas and Submerged Lands Case. The Commonwealth and the States subsequently came to a series of arrangements collectively known as the Offshore Constitutional Settlement (the OCS). The purpose of the OCS was to give the States a greater legal and administrative role in offshore areas. The principle legislation implementing the OCS (Coastal Water States, Power and Title Act 1982) entered into force in February 1983.
There are two fundamental elements underpinning the OCS arrangements. First, the States and the Northern Territory were given title to an area called 'coastal waters' consisting of all waters landward of the three nautical mile limit but not including internal waters that are within the constitutional limits of a State; for example, Sydney Harbour. Second, the States and the Northern Territory were given concurrent legislative power over coastal waters; that is, they were given the same power to legislate over coastal waters as they would have over their land territory. The legislation implementing the OCS made it clear that should the territorial sea subsequently be extended from three nautical miles to 12 nautical miles the OCS arrangements would continue to apply only to the three nautical miles limit. In 1990 the territorial sea was extended to the 12 nautical miles limit, but the relevant limit for the purposes of the OCS remains at the three nautical miles.
In effect, through the OCS, the Commonwealth agreed to give the States primary responsibility over coastal waters (out to three nautical miles). Beyond that the Commonwealth retains primary responsibility. The OCS also included a number of cooperative arrangements for the management of resources offshore, such as fisheries and petroleum. These cooperative arrangements are reflected in the relevant Commonwealth, State and Northern Territory legislation.
Examples of such arrangements are those entered into under the Fisheries Management Act 1991 to enable a fishery both within and outside State coastal waters to be managed by one authority (State or Commonwealth) under one law (State or Commonwealth).
A range of constitutional powers enable the Commonwealth Parliament to pass laws relating to the oceans and their management. These include: Commonwealth powers over trade and commerce, external affairs, corporations, defence, fisheries, territories and quarantine. A number of aspects of the external affairs power are relevant, but principally that aspect that allows the Commonwealth to legislate with respect to matters physically external to Australia, that is, beyond low water mark. The Commonwealth can also legislate under the external affairs power to give effect to treaties, matters of international concern and matters affecting Australia's relations with other countries.
As noted, the States and the Northern Territory were given power to legislate over coastal waters as part of the OCS. After implementation of the OCS in 1983, however, the High Court held that the general power of each State to make laws for the 'peace, order and good government' of the State enables each State to legislate in relation to its adjacent maritime area, provided there exists a reasonable connection between the State and the activity covered by the legislation.
This means that the extension of State legislative powers to coastal waters as part of the OCS is now largely redundant.
The OCS does not prevent either the Commonwealth or the States from exercising their full legislative powers in the offshore area. However, the practice largely has been to exercise those powers in a manner consistent with the OCS. Nevertheless, if there is a conflict between State and Commonwealth laws applying to the maritime area then, in accordance with section 109 of the Constitution, the Commonwealth law would prevail. The State law would be invalid to the extent of the inconsistency.
