Federalism and the Australian offshore constitutional settlement

The offshore has been the centre of intergovernmental interaction in Australia for over twenty-five years yet has remained a neglected topic in studies of Australian federalism. This study examines the development and implementation of a complex intergovernmental arrangement, the Offshore Constitutional Settlement (OCS), which returned jurisdiction to the States from low water mark to three nautical miles offshore following the High Court's decision in the Seas and Submerged Lands case of December 1975, which upheld Commonwealth jurisdiction from low water mark. The OCS was established, after lengthy intergovernmental interaction, in 1979 with what were termed \agreed arrangements\" implemented between 1983 and 1990. The most visible element of offshore resource policy in the period following the Second World War is the the continual expansion of the Commonwealth's interests. To focus solely on this expansion gives a limited explanation for the development of intergovernmental agreements such as the OCS which reflect the complexities of interaction between the Commonwealth and the States. A central concern of this study is to examine the factors contributing to the development of the OCS particularly the extent to which State governments were dominant actors in the negotiations and in the implementation of the \"agreed arrangements\". The study utilises an analytical framework which allows the examination of institutions and processes by which the States have been able to limit or counter the effective reach of increased Commonwealth constitutional power and influence and which act as parameters for intergovernmental interaction in this policy area. In structuring relations between the Commonwealth and States offshore these parameters not only emphasise the significance of a States' constitutional and political bases but- also identify elements of intergovernmental interaction which counter the more visible expansion of Commonwealth activity. The OCS is thus an outcome -of the evolution (or \"ebb and flow\") of Australian federalism offshore in which the States remain important actors; an evolution shaped by the impact of the constitutional division of powers judicial review of jurisdictional disputes and Australia's responsibilities in relation to the emergent international law of the sea."