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Australian Offshore Laws Michael White Australian Offshore Laws Michael White The Federation Press November 2009 ISBN 978 1 86287 742 9 • Hardback • 508pp Purchase printed copy from publisher online: Australian RRP $195.00 The Book Australian Offshore Laws brings together in one place a reference to all laws that apply to offshore Australian waters for the beneft of legal practitioners, regulators, academics and students. It demonstrates the unnecessary complexity of the Australian offshore legal regime and proposes, as a frst step towards reform, a review of the Offshore Constitutional Settlement of 1979 (OCS 1979). It discusses the manner of present drafting of such laws as many Commonwealth, State, and Territory laws apply offshore but few are drafted in a manner which identifes their limits or recognises their interaction with other offshore laws of with the OCS 1979. Contents • Introduction and Background to Offshore Laws • Offshore Constitutional Laws • Offshore Petroleum, Mining and Installations Laws • Offshore Criminal Laws • Offshore Defence Laws • Offshore Immigration Laws • Offshore Fisheries Laws • Offshore Customs, Quarantine and Excise Laws • Antarctica and Southern Ocean Territories Laws • Offshore Territories Laws • Offshore Shipping Laws • Offshore Geographical Areas • Summary and Proposals for Reform • Annex 1: Offshore Constitutional Settlement: A Milestone in Co-operative Federalism • Annex 2: Offshore Constitutional Settlement: Selected Statements and Documents 1978-79 About the Author Michael White specialises in maritime law and law of the sea, including in marine pollution from ships. After a frst career in the Australian Navy in various ships and submarines he obtained degrees in law and commerce. He then practised as a Barrister for many years, becoming a QC in 1988, later becoming a full time academic at the University of Queensland. He was the foundation Executor Director of The Centre for Marine Law (later The Marine and Shipping Law Unit) in the TC Beirne School of Law. His PhD was on marine pollution from ships and he has written widely on issues in maritime law and in history. He is presently an Adjunct Professor in The Marine and Shipping Law Unit, T.C. Beirne School of Law. He was awarded an OAM in the Australian Honours List January 2016 for his contribution to maritime law and naval history. ___________________________________________________________________________ The Federation Press Pty Ltd ABN 67 003 409 318 • PO Box 45 Annandale NSW 2038 Australia Phone: (+ 61 2) 9552 2200 • Fax: (+61 2) 9552 1681 • Email: [email protected] Online Bookshop: www.federationpress.com.au AUSTRALIAN OFFSHORE LAWS AUSTRALIAN OFFSHORE LAWS Michael W D White THE FEDERATION PRESS 2009 Published in Sydney in 2007 by The Federation Press PO Box 45, Annandale, NSW, 2038. 71 John St, Leichhardt, NSW, 2040. Ph (02) 9552 2200. Fax (02) 9552 1681. E-Mail: [email protected] Website: http://www.federationpress.com.au National Library of Australia Cataloguing-in-Publication entry White, MWD (Michael WilliaM Duckett) Australian offshore laws / Michael White Includes index. ISBN 978 1 86287 742 9 (hbk) Territorial waters – Law and legislation. Australia. Maritime law – Australia. 342.940413 © The Federation Press This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it May in any form or by any Means (electronic, Mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval systeM or trans- mitted without prior written permission. Enquiries should be addressed to the publisher. Typeset by The Federation Press, Leichhardt, NSW. Printed by Ligare Pty Ltd, Riverwood, NSW. List of Chapters 1. Introduction and Background to Offshore Laws 1 2. Offshore Constitutional Laws 15 3. Offshore PetroleuM, Mining and Installations Laws 45 4. Offshore CriMinal Laws 75 5. Offshore Defence Laws 101 6. Offshore ImMigration Laws 130 7. Offshore Fisheries Laws 165 8. Offshore Customs, Quarantine and Excise Laws 217 9. Antarctic and Southern Oceans Territories Laws 253 10. Offshore Territories Laws 292 11. Offshore Shipping Laws 320 12. Offshore Geographical Areas 353 13. SumMary and Proposals for Reform 397 (For detailed Table of Contents, see over) v Contents Preface xvi About the author xxii Memorandum Concerning the Proposed MaritiMe Powers Bill 2010 xxiv Table of Maps xxvi Table of Cases xxvii Table of Statutes and Regulations xxx Table of International Instruments xxxv Chapter 1. Introduction and Background to Offshore Laws 1 1.1 Introduction 1 1.2 Colonial Period 2 1.2.1 Jurisdiction of English Courts 3 1.2.2 Early Courts in the Australian Colonies 4 1.2.3 Territorial LiMits of the Colonies 5 1.2.4 Application of English Law in the Colonies 7 1.2.5 Legislative Power of the Colonies 7 1.2.6 Offshore Jurisdiction of the Colonies 8 1.2.6.1 Federal Council of Australasia 8 1.2.6.2 Criminal Jurisdiction of the Colonies 9 1.2.6.3 Fisheries Jurisdiction of the Colonies 10 1.2.6.4 Customs Jurisdiction of the Colonies 11 1.3 Federation in 1901 11 1.3.1 Commonwealth Offshore Legislative Power Post- Federation 12 1.4 Conclusions 14 Chapter 2. Offshore Constitutional Laws 15 2.1 Introduction 15 2.2 Offshore PetroleuM AgreeMent 1967 17 2.3 The 1958 Conventions; the Seas and SubMerged Lands Act 1973 and its High Court Case 19 2.4 Subsequent High Court Cases 1975-1979 22 2.5 Offshore Constitutional Settlement 1979 24 2.6 Roll Back Provisions Relating to Marine Pollution 31 2.7 Post 1979 High Court Cases 33 2.8 Offshore Zones 39 2.9 Conclusions 44 Chapter 3. Offshore Petroleum, Mining and Installations Laws 45 3.1 Introduction 45 3.2 PetroleuM Aspects of the Offshore Constitutional SettleMent 1979 47 3.3 PetroleuM (SubMerged Lands) Act 1967 49 vii CONTENTS 3.4 Offshore PetroleuM and Greenhouse Gas Storage Act 2006 50 3.4.1 Introduction 50 3.4.2 Offshore PetroleuM Areas and Coastal Waters 51 3.4.2.1 Coastal Waters of the States 52 3.4.2.2 Offshore Areas of the States 53 3.4.2.3 Applied Laws of the States 55 3.4.3 Courts’ Jurisdictions 56 3.4.4 Safety Zones and Areas to be Avoided 56 3.4.5 Terrorism Issues 57 3.4.6 Occupation Health and Safety Issues 57 3.4.7 Greenhouse Gas Storage AMendMents 2008 58 3.4.8 Administration 59 3.4.8.1 Joint Authority 59 3.4.8.2 Designated Authority 60 3.5 Offshore Minerals Act 1994 60 3.6 Sea Installations Act 1987 62 3.7 TiMor-Leste and the Joint PetroleuM DevelopMent Area 65 3.7.1 Background 65 3.7.2 TiMor Sea Treaty 2002 67 3.7.3 Petroleum (TiMor Sea Treaty) Act 2003 69 3.7.4 Treaty on Certain MaritiMe ArrangeMents in the Timor Sea 2006 70 3.7.5 Timor Sea Conclusions 72 3.8 General Conclusions 72 Chapter 4. Offshore Criminal Laws 75 4.1 Introduction 75 4.2 British SettleMent in 1788 78 4.3 Two Significant Cases: Bull v R and Oteri v R 80 4.3.1 R v Bull 80 4.3.2 Oteri v R 80 4.4 CriMes Act 1914 82 4.5 Offshore Constitutional Settlement 1979 and UniforM Scheme for CriMes at Sea 1979 85 4.5.1 Offshore Constitutional Settlement 1979 85 4.5.2 CriMes at Sea Act 1979 87 4.6 CriMes (Ships and Fixed PlatforMs) Act 1992 88 4.7 Cooperative ScheMe for CriMes at Sea Act 2000 89 4.7.1 CriMes at Sea Act 2000 89 4.7.2 Inner Adjacent Area 90 4.7.3 Outer Adjacent Area 91 4.7.4 Joint PetroleuM DevelopMent Area 91 4.7.5 Jervis Bay Laws Otherwise Applied 92 4.7.6 Exceptions to the Adjacent Area 92 4.8 Terrorism and Offshore Laws 93 4.9 Police Offshore Powers 94 4.10 SoMe Leading Cases 95 4.10.1 The Pong Su Case 95 4.11 Conclusions 96 viii CONTENTS Chapter 5. Offshore Defence Laws 101 5.1 Introduction 101 5.2 Defence Force Constitutional FraMework 102 5.2.1 Defence and the Constitution 102 5.2.2 Call Out and the Constitution 103 5.2.3 Executive Power and the Constitution 106 5.3 Structure and AdMinistration of the Defence Force 106 5.4 Extent of the Offshore Area 107 5.5 Ordinary Border Protection Powers 108 5.5.1 Introduction 108 5.5.2 Defence Force and Fisheries Powers 109 5.5.3 Defence Force and CustoMs Powers 109 5.5.4 Defence Force and Quarantine Powers 110 5.5.5 Defence Force and ImMigration Powers 110 5.5.6 Defence Force and Offshore Installations Powers 110 5.6 Counter-TerrorisM Operations 111 5.6.1 Activation in the Australian Offshore Area 112 5.6.2 Expedited Activation 114 5.6.3 Powers in the Australian Offshore Area 115 5.6.4 Special Powers 115 5.6.5 Powers in General Security Areas 117 5.6.6 Powers in Designated Areas 117 5.6.7 Other Powers 118 5.6.8 Defence Force and Aircraft Threats 119 5.7 Restrictions on the Use of Force 120 5.8 Defence of Superior Orders 122 5.9 Cooperation with Police 123 5.10 Military CoMMissions 123 5.11 Piracy 125 5.12 Salvage ClaiMs 126 5.13 Conclusions 128 Chapter 6. Offshore Immigration Laws 130 6.1 Introduction 131 6.2 ImMigration and the Australian Constitution 133 6.3 Australian MaritiMe Zones and ImMigration 134 6.3.1 Territorial Sea 134 6.3.2 Contiguous Zone 135 6.3.3 Migration Zone 135 6.3.4 Refugees 136 6.3.5 Australia’s Excised Offshore Places 137 6.3.6 Torres Strait and its Protected Zone 139 6.4 Offshore Laws in Relation to Illegal Immigration by Sea 140 6.4.1 Powers of Officials to Deal with Unlawful ImMigrants 140 6.4.1.1 Detention, ReMoval and Deportation 140 6.4.1.2 Boarding at Sea 142 6.4.1.3 Hot Pursuit 144 ix CONTENTS 6.4.1.4 Use of Force 144 6.4.1.5 Detention, Arrest and Further Powers 145 6.4.2 Powers of the Australian Defence Force 146 6.4.3 IMMigration Detention 147 6.4.4 Offshore Migration Offences 148 6.4.5 Health Issues 149 6.5 Review and Appeal Processes 149 6.6 The
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