Of reefs and men: When the best laid plans go awry, have we an acceptable way forward?

• Author: Sarah Catherine Derrington
• Position: Dean of Law, The University of Queensland. I am very grateful to my research assistant, Mr Leo Rees-Murphy, for his invaluable preparatory work for the paper. I am also very grateful to two senior industry colleagues who commented on an earlier draft and corrected any egregious errors. All remaining errors and omissions are mine
• Pages: 1-13

(2017) 31 ANZ Mar LJ

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The 43rd Annual MLAANZ Conference

NOOSA

29 September 2016

Frank Stuart Dethridge Memorial Address

“OF REEFS AND MEN”*

WHEN THE BEST LAID PLANS GO AWRY, HAVE WE AN ACCEPTABLE WAY

FORWARD?

Professor Sarah C Derrington**

1 Introduction

It is a great honour to have been invited to deliver this year’s Dethridge Memorial Address. I am conscious that I

follow in the footsteps of the many eminent lawyers who have delivered this address since its inception in 19 77

and I am humbled by the privilege. I also note with some sadness that it is now some 20 years since the late Justice

Richard Cooper delivered this address.

The theme of this year’s conference, Resources vs the Reef, is not only topical but o f crucial importance to

Australia, both from an environmental and economic perspective. I have therefore chosen to address a question

that I hope does justice to the conference theme, and one which I hope will also resonate with our New Zealand

colleagues whose reefs and coastlines are, as we have seen in recent years, at equal risk of catastrophic damage.

Whilst considering the content of this address, I pondered the great body of work that has been done in the attempt

to reduce the risks to our reefs that are presented by the shipping industry; work by government agencies both

nationally and internationally, by the industry itself and by academics in a wide variety of disciplines, including

marine engineering and naval architecture, materials engineering, psychology, economics, environmental science

and, yes, even law. But as we know humans and human systems are fallible. So how do we reckon for the occasion

when the best laid plans fail to prevent an incident and limitation amounts are inadequate to compensate for the

resulting damage? I need to make clear at this point that the views that follow are entirely my own and are not

endorsed by, and should not be attributed to, any organisation with which I may be associated.

The Great Barrier Reef Region is defined in the Great Barrier Reef Marine Park Act 1975. The Region covers

346,000 square kilometres from the tip of Cape York in the north to just south of Lady Elliot Island. Its western

boundary is the mean low water mark and it extends eastwards a distance of between 70 and 250 kilometres. It

includes about 70 Commonwealth-owned islands but excludes the 980 Queensland islands and the internal waters

of Queensland.

Approximately 70% of the Region lies within Australia’s Exclusive Economic Zone (EEZ), as defined by the

United Nations Convention on the Law of the Sea (UNCLOS), which Australia ratified in 1994. The EEZ of a

country is the area of water adjacent to a coastal state’s territorial sea extending up to 200 nautical miles out to

sea from a coastal state’s baseline or low-water line. Within its EEZ, a coastal state has the right, and indeed the

obligation, to conserve and manage the marine resources that lie therein.1 However, art. 58 preserves for all other

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

* With apologies to Robert Burn,

“To a Mouse on turning her up in a nest with a plough ”

…

But, Mousie, thou art no thy lane,

In proving foresight may be vain;

The best-laid schemes o' mice an 'men

Gang aft agley,

An'lea'e us nought but grief an' pain,

For promis'd joy!