Jurisdictional disputes and the development of offshore petroleum legislation in Australia

This thesis examines the reform of the legislative regime for governing offshore oil development on Australia's continental shelf. In particular, the thesis explores how several factors have combined to shape the Commonwealth's offshore petroleum legislation at various stages since its original enactment. The more important of these factors include questions of constitutional law, the impact of the emerging law of the sea, the Commonwealth's policy-making and administrative expertise, and the input of state governments and the oil industry to Commonwealth offshore policy. The thirty year history of the Petroleum (Submerged Lands) Act can be considered as having evolved through four distinct phases. During the 1960s, the Commonwealth legislated to accommodate the states' much greater capacity to administer offshore oil development. The second phase of offshore policy in the 1970s is characterized by the Commonwealth's assertion of its superior legislative capabilities over offshore areas visa-vis the states. Following the associated inter-governmental tension, the third evolutionary phase in the early 1980s represents a return to a collaborative offshore policy approach. The fourth phase corresponds with the current mature state of the regime wherein the Commonwealth now prevails in offshore petroleum policy but still involves the states directly in continental shelf policy making under Commonwealth law. Despite the responsibilities of the Commonwealth and states shifting over time because of the influence of the factors identified above, the participation of both spheres of government. in continental shelf policy has never been seriously doubted. This thesis argues that it is the joint exercise of decision-making powers by the Commonwealth and states that has provided stability to an otherwise volatile area of natural resources policy. In strictly legal terms, the Commonwealth could have asserted its jurisdiction in respect of the extended continental shelf when it first entered this legislative policy field in 1967. Because of the particular combination of factors prevailing at that time, however, the Commonwealth instead vacated to the states the policy field of offshore petroleum. The early role assumed by the states assured them of continued participation in the Commonwealth's offshore petroleum regime, even after offshore jurisdiction was divided three miles offshore in 1980 as part of the Offshore Constitutional Settlement (OCS). At the same time, the Commonwealth has come to realize the necessity of state government input to its continental shelf regime. While the Commonwealth has increasingly legislated to reduce the role of the states in offshore petroleum policy, this sphere of government still participates directly in administering the continental shelf regime through the exercise of Commonwealth powers. That the Commonwealth has progressed its marine resources policies within the context of the OCS without sending Australia back into another phase of offshore disputation testifies to the maturation of this policy area, and the legal and administrative regimes established to govern offshore petroleum development. The thesis shows that the regime established under the Petroleum (Submerged Lands) Act has handled jurisdictional issues with a high degree of success through its evolving partnership between the Commonwealth and the states. Although the offshore petroleum regime does have some shortcomings, the legislation nonetheless provides a model by which jurisdictional differences over offshore resources can be overcome. Thus, the offshore petroleum regime established under the OCS arrangements has relevance for other federations struggling with offshore jurisdiction issues, particularly the United States.