Australia's Offshore Legal Jurisdiction: Current Situation

• Author: Michael William White
• Position: QC, B.Com, LLB, PhD (Law), Adjunct Professor, University of Queensland. As for part 1 of this paper, the author acknowledges the excellent research assistance rendered by James Green (BEcon (Hons), LLB (Hons)), Michael Wells (LLB (Hons), BA) and especially by Rosemary Gibson (BA, LLB (Hons))
• Pages: 19-34

(2011) 25 A&NZ Mar LJ

AUSTRALIA’S OFFSHORE LEGAL JURISDICTION: PART 2 – CURRENT

SITUATION

Mic ha e l White*

1 Introduction

Part 1 of these two articles set out the genesis of the Australian offshore laws and proceeded through their history

and development, including the Offshore Constitutional Settlement 1979 (OCS 1979). Part 1 went into the detail

of Australian laws as they developed, but this Part in the main addresses more general aspects and is concerned

with the current state of the laws. It commences by describing the international zones that apply offshore and

which govern the jurisdiction and laws of every coastal State. I t then details how the Australian laws actually

deal with the various offshore areas and, after describing how the laws deal with particular offshore activities, it

draws some conclusions.

2 Offshore Maritime Zones unde r UNCLOS

Some understanding of the basic offshore zones is relevant to the issues at hand because the extent of

sovereignty or jurisdiction offshore varies with the zones. A coastal state like Australia has sovereignty or

jurisdiction over its land and its waters close inshore, but this right to regulate offshore activities and

foreign people reduces as the distance offshore increases until one reaches the high seas where the right is

minimal. Comprehension of the numerous Australian Acts that apply offshore starts, therefore, with

international maritime law and laws of the sea.

The simple one zone system of a territorial sea in earlier times has developed into a more complex system.

These zones have effectively been codified by UNCLOS,1 to which Australia has given legislative

effect.2

A diagram setting out the zones is set out under:

Source: demap

* QC, B.Com, LLB, PhD (Law), Adjunct Professor, University of Queensland. As for part 1 of this paper, the author acknowledges the

excellent research assistance rendered by James Green (BEc on (Hons), LLB (Hons)), Michael Wells ( LLB (Hons), BA) and especially by

Rosemary Gibson (BA, LLB (Hons)).

1 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 14 November

1994) (‘UNCLOS’).

2 Seas and Submerged Lands Act 1973 (Cth) (‘Seas and Submerged Lands Act’).

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Austra lia ’ s Offshore Le ga l Jurisdic tio n – Curre nt Situa tio n

(2011) 25 A&NZ Mar LJ

The zones offshore are measured from the baselines. In customary international law and the codification

in the earlier 1958 convention,3 there was a formula for each coastal state to establish its own baselines.

For present purposes, the codification set out in UNCLOS is sufficient and it provides that ‘the normal

baseline … is the low-water line along the coast’.4 In the case of atolls and islands with fringing reefs,

which are common for much of the Australian northern coastline, the baselines run along the outer low-

water line of the reefs.5 Where there are indents in the coastline or fringing off-lying islands, ‘straight

baselines’ may be drawn from one point to the appropriate next point. The detail can be complicated but

the principles are set out in a series of provisions in UNCLOS, which addresses these features, as well as

ports, roadsteads and low-tide elevations (i.e. elevations that are covered at high water).6

Baselines must be placed on suitable large-scale charts and published for all to ascertain.7 This Australia

has done. Geoscience Australia, the national agency for research and geospatial information, has the

responsibility for surveying, ascertaining and publishing this information, along with the Australian

Hydrograph Service, which Service is in charge of marine surveys and charts. How the baselines may be

established in evidence in court was decided by the High Court in Li Chia Hsing v Rankin,8

where a

fisherman charged with offending Commonwealth fishing laws challenged the distance his boat was

offshore at the time of the offence, including whether the baselines could be established by just

measuring distances on a maritime chart. The court held that these were just questions of fact and

baselines could be established by a chart or by evidence of the actual position of the low-water mark

on the coast itself.

The Internal Waters are the waters on the landward side of the baselines and Australia proclaims its

sovereignty over these waters under the Seas and Submerged Lands Act 1973 (Cth),9 as provided for in

UNCLOS.10 UNCLOS establishes that a coastal state has sovereignty over its internal waters, as to which

see shortly. There are some Commonwealth internal waters,11 but most of the Australian waters to the

landward side of the baselines lie within the jurisdiction of the States and the Northern Territory.12

The Territorial Sea runs from the baselines out for 12 nautical miles (referred to simply as ‘miles’ in this

paper). Under s 7 of the Seas and Submerged Lands Act, the Governor-General is given power to declare

the outer limits of the whole or any part of the territorial sea. Pursuant to this power, in 1990 the

Commonwealth extended the outer limit of the territorial sea from three to 12 miles, 13

but, as already

mentioned, this did not extend the jurisdiction of the States beyond the three mile limit agreed under OCS

1979.

The Contiguous Zone is the zone of sea contiguous to the outer limit of the territorial sea and its limit

may not exceed 24 miles from the baselines,14 which means that it extends 12 miles beyond the territorial

sea. Under UNCLOS, a coastal state may control the contiguous zone as may be necessary to prevent

infringement of its ‘customs, fiscal, immigration and sanitary laws’ and may punish offences that may be

committed in its territory or territorial sea.15 The rationale behind this is to allow the coastal state to

prevent persons of criminal intent hovering just outside its territorial sea. Of course, the power is limited

to the four aspects mentioned above. The Commonwealth has given legislative effect to this jurisdiction

in the Seas and Submerged Lands Act16 and it declared its contiguous zone in 1999.17

The Exclusive Economic Zone (EEZ) runs from the baselines out for 200 miles.18

3 Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (ent ered into force 10

September 1964).

The Commonwealth

4 UNCLOS art 5.

5 UNCLOS art 6.

6 UNCLOS arts 7-15.

7 UNCLOS art 16.

8 (1978) 141 CLR 182.

9 Seas and Submerged Lands Act s 10.

10 UNCLOS art 8.

11 Such as the southern end of Jervis Bay.

12 Seas and Submerged Lands Act s 14. Waters in dams, inland rivers and lagoons are ‘inland waters ’ and are not directly relevant to this

discussion.

13 Commonwealth, Gazette, No S 297, 13 Novemb er1990; Note 2 to Seas and Submerged Lands Act.

14 UNCLOS art 33(2).

15 UNCLOS art 33(1).

16 The Commonwealth has ‘declared and enacted that Australia has a contiguous zone’: Seas and Submerged Lands Act s 13A.

17 Commonwealth, Gazette, No S 148, 14 Apri l 1999; Note 2 to Seas and Submerged Lands Act.

18 UNCLOS pt V.

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