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Offshore Constitutional SettlementThe 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] HistoryConvention on Territorial Sea and Contiguous Zone 1958The 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 1973The 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 AustraliaThe 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] SettlementPremiers Conference, 1979On 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 1980The Coastal Waters (State Powers) Act 1980 vests the states the power to legislate within 3 nautical miles.[9] Coastal Waters (State Title) Act 1980The 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 1980The 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 1980The Coastal Waters (Northern Territory Title) Act 1980 vests the Northern Territory the right and title to the property within 3 nautical miles.[12] Further developmenntsUnder the Crimes at Sea Act 2000 (Cth), the criminal law of each state applies to all 12 miles of the territorial sea.[13][14] DiscussionUntil 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 comparisonThe 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] CriticismThe 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 alsoReferences
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