Teoría general de la Organización Internacional.
2. Importancia de la organización internacional: causas y efectos.
Oil and gas exploration grew slowly from a single oil bore in South Australia in 1892.8 From then to the 1960s it grew into permits to explore
some 158,000 square kilometres in offshore areas from the South Austra- lian, Tasmanian and Victorian State governments. By 1967 Hematite Petroleum Pty Ltd and its partner in the exploration, Esso Exploration Australia Inc, had made major finds in the Gippsland Basin off the Victorian coast. Other finds followed. At this stage, although there was general Commonwealth legislation encouraging exploration and exploitation of minerals, including oil and gas, there was none exercising specific jurisdiction over the offshore areas and it was seen as desirable that there be some national Australian regulatory structure.9
On the international scene, there was increasing interest in offshore oil and gas regulation relating to protection of the marine environment. The High Seas Convention 1958 required states to control marine pollution of the high seas in general terms,10 and the Continental Shelf Convention
1958 obliged states to take appropriate means to protect living resources of the sea from harmful agents around continental shelf installations.11
UNCLOS later had similar provisions requiring states to adopt laws and regulations to prevent pollution from seabed activities and artificial islands in their offshore jurisdiction.12
8 Off Shore Oil and Natural Gas: Exploration and Legislation (Victorian Government Printer 1968).
9 See generally Cullen R, Federalism in Action. The Australian and Canadian Offshore Disputes (Federation Press, 1990) Chapters 3, 4.
10 Convention on the High Seas, done at Geneva on 29 April 1958. It came into force generally on 30 September 1962 and for Australia on 13 June 1963; [1963] ATS 12. Article 24 provides: ‘Every State shall draw up regulations to prevent the dis- charge of oil from ships and pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provi- sions on the subject’.
11 Convention on the Continental Shelf done at Geneva on 29 April 1958. It came into force generally and for Australia on 10 June 1964. Article 5(1) provided: ‘The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication’.
12 United Nations Convention on the Law of the Sea done at Montego Bay on 10 Decem- ber 1982. Article 208(1) was the relevant provision which stated: ‘Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to articles 60 and 80’.
In 1962 the Commonwealth Minister for National Development and the State Ministers for Mines decided to refer the matter of a cooperative approach on the subject of offshore mining to the Standing Committee of Commonwealth and State Attorneys-General. No government was confident as to the outcome of any litigation on the vexed question of jurisdiction over the territorial sea and the continental shelf and advisory opinions from the High Court are not available.13 In the result the
Offshore Petroleum Agreement 196714 was arrived at which provided
that the Commonwealth and the States would each introduce legislation which would establish a regime within which offshore mineral explora- tion and exploitation could be jointly undertaken and the royalties from the oil production would be shared.15
The Agreement basically provided for a total cooperative approach amongst the Commonwealth and the States with the one set of laws covering the activities and with regulation by joint committees on which all interested government are represented.
The primary part of the agreed legislation was the Petroleum (Sub-
merged Lands) Act 1967 (PSLA).16 The reasons behind its enactment and its
purposes were admirably stated in the preamble, which repeats the preamble to the Agreement, as follows:
WHEREAS in accordance with international law Australia as a coastal state has sovereign rights over the continental shelf beyond the limits of Australian territorial waters for the purpose of exploring it and exploiting its natural resources:
AND WHEREAS Australia is a party to the Convention on the Conti-
nental Shelf signed at Geneva on 29th April, 1958, in which those rights
were defined;
AND WHEREAS the exploration for and the exploitation of the petroleum resources of submerged lands adjacent to the Australian coast would be encouraged by the adoption of legislative measures applying uniformly to the continental shelf and to the sea-bed and subsoil beneath territorial waters:
AND WHEREAS the Governments of the Commonwealth and of the States have decided, in the national interest, that, without raising
13 Re Judiciary Act 1903-1920 and Navigation Act 1912-1920 (1921) 29 CLR 257. 14 Its full title is ‘Agreement relating to the Exploration for, and the Exploitation of,
the Petroleum Resources, and certain other Resources, of the Continental Shelf of Australia and of certain Territories of the Commonwealth and of certain other Submerged Land (sic)’ made 16 October 1967, amongst the Commonwealth and the States (NSW, Queensland, SA, Tasmania, Victoria and WA).
15 For a fuller description of these events, see Cullen, above, Chapter 3.
16 For details of the sharing of royalties, see Cullen, above, p 66. The Victorian government levied fees for the use of a pipeline to convey the oil and gas from Bass Strait under the Pipelines Act 1967 and the Pipelines (Fees) Act 1967, but when they raised the amount of the levy substantially by amendment in 1981 it was challenged and the High Court held that it amounted to an excise (for which the State had no power) and was invalid – Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599.
questions concerning, and without derogating from, their respective constitutional powers, they should co-operate for the purpose of ensuring the legal effectiveness of authorities to explore for or to exploit the petroleum resources of those submerged lands:
AND WHEREAS the Governments of the Commonwealth and of the States have accordingly agreed to submit to their respective Parlia- ments legislation relating both to the continental shelf and to the sea- bed and subsoil beneath territorial waters and have also agreed to co- operate in the administration of that legislation:
BE IT THEREFORE enacted ...
The Act used the drafting device of the ‘adjacent area’ (set out in Sch 2) as the area adjacent to the respective States and Territories by creating a line off the Australian coast within which the adjacent area exists. In other words the jurisdiction of the PSLA extended over the ‘adjacent area’ which was subject to special provisions for outlying terri- tories and maritime boundaries with neighbouring States, out to the limits of the outer continental shelf but it did not include out to the three nautical mile limit, the Coral Sea area and any relevant Joint Petroleum Development Areas.17 The laws (written and unwritten), of the Common-
wealth and the States were made applicable, and the Supreme Courts of the States were invested with, and of the Territories had conferred on them, federal jurisdiction.18 The term ‘natural resources’ had the same
meaning as that set out in UNCLOS.19
In relation to mining for petroleum the PSLA provided for the Governor-General to make arrangements with the Governors of the States20 for a Designated Authority to have relevant administrative
power, for permits to be applied for, after blocks had been advertised, and for terms and conditions to be imposed on successful applicants. Where petroleum was discovered the Designated Authority was to be notified and the permit holder was required to comply with its direc- tions. Provision was also made for Production Licences for petroleum and, where there was more than one company producing from the one petroleum pool, the Designated Authority had power to require that they enter into an agreement for ‘unit development’.The Act was amended by the Maritime Legislation Amendment Act 1994 to replace the references to
17 Section 5A
18 Sections 9-13.
19 UNCLOSArt77(4)defines‘naturalresources’as‘themineralandothernon-living resourcesof thesea-bed andsubsoiltogether withlivingorganismsbelongto sedentaryspecies’.Thisdefinitionisexpresslysetouttocovertheoutercontinen- tal shelfas‘natural resources’intheEEZ aredefined toinclude fisheries.The PSLA isdirected onlyto oil and gas mineralresources,ineffect,whicharethe resourcestowhichacoastalstateisentitledtoexercisejurisdictionintheouter continentalshelf.
20 The reference to the Governor-General and the State Governors is merely a constitutional drafting device for reference to the respective Commonwealth and State governments to make these arrangements.
the Convention on the Territorial Sea and Contiguous Zone 1958 and the
Convention on the Continental Shelf 1958 with references to comparable
provisions in UNCLOS. The PSLA had a number of supporting Acts, mainly relating to revenue aspects.21
The PSLA was repealed and the legislative area completely revised by the Offshore Petroleum Act 2006 (OPA); which is the main Act in a package of six Acts that rewrite and replace the PSLA and associa- ted legislation.22 The OPA and associated Acts provide for the grant of
exploration permits, retention leases, production licences, infrastructure licences, pipeline licences, special prospecting authorities and access authorities and occupational health and safety provisions, including the operation of the National Offshore Petroleum Safety Authority for their administration.23 The OPA does not alter the basic exercise of jurisdiction
over natural resources out to the limits of the claimable outer continental shelf24 but from its relevant sections a most complex jurisdiction emerges.
This complexity does not so much relate to the outer limits of the jurisdiction established by the OPA as the constitutional issues thereby raised. Section 4 refers to the Offshore Constitutional Settlement 1979, as to which see the next section, and then s 5 sets out some simplified maps. Because the States and the Northern Territory have jurisdiction over petroleum for the first three miles from the baselines, see ss 4 and 5, then the accuracy of the baselines is called into question as is the accuracy of the measurement of that distance. When it comes to the detail, one sees that special provision has been made for South Australia,25 for Queens-
land, Western Australia and the Northern Territory (excluding the Timor
21 These are the Petroleum and Minerals Authority Act 1973, Petroleum (Ashmore and Cartier) Islands Act 1967, Petroleum Excise (Prices) Act 1987, Petroleum Products Pricing Act 1981, Petroleum Resource Rent Tax Assessment Act 1987, Petroleum Resource Rent Tax (Interest on Underpayments) Act 1987, Petroleum Retail Marketing Sites Act 1980, Petroleum Revenue Act 1985, Petroleum Search Subsidy Act 1959, Petroleum (Submerged Lands) (Exploration Permit Fees) Act 1967, Petroleum (Submer- ged Lands) (Pipeline Licence Fees) Act 1967, Petroleum (Submerged Lands) (Production Licence Fees) Act 1967, Petroleum (Submerged Lands) (Registration Fees) Act 1967, Petroleum (Submerged Lands) (Retention Lease Fees) Act 1985 and the Petroleum (Submerged Lands) (Royalty) Act 1967.
22 The other five Acts are the Offshore Petroleum (Annual Fees) Act 2006, the Offshore Petroleum (Registration Fees) Act 2006, the Offshore Petroleum (Repeals and Conse- quential Amendments) Act 2006, the Offshore Petroleum (Royalty) Act 2006 and the Offshore Petroleum (Safety Levies) Amendment Act 2006.
23 At time of writing the Acts have not been proclaimed so readers will need to check the dates for implementation; see generally the Commonwealth Parlia- mentary website on legislation; <www.comlaw.gov.au>.
24 Section 3 sets out the simplified outline of the Act as follows: ‘This Act sets up a system for regulating the following activities in offshore areas’ and it goes on to set out the activities of petroleum exploration, recovery, construction and operation of facilities and of pipelines. It also sets out that an ‘offshore area’ starts three nautical miles from the baseline and extends seaward to the outer limits of the continental shelf.
Sea Joint Petroleum Development Area) and for the external island terri- tories.26 The OPA purports to apply to ‘all’ individuals and corporations,
without restriction.27
The offshore area to which OPA applies is from three nautical miles from the baseline seawards to the outer limits of the continental shelf.28 From that three nautical mile limit towards the land the relevant
State or Northern Territory laws apply. It may be seen from this how desirable it is that the laws be absolutely consistent and whilst this is broadly achieved the result is far from perfect. The map (see over) shows the geographical areas to which the OPA applies.
Apart from the problems involved in territorial jurisdiction, when it comes to what laws should apply, the matrix becomes fascinating. Part 1.4 of the OPA applies all State laws relevant to petroleum exploration, exploitation and conveyance in the offshore area ‘as laws of the Com- monwealth’ and it defines ‘laws’ as all written and unwritten ones including instruments. It then sets out lengthy provisions as to what laws do not apply and, as well, provides that certain provisions relating to pipelines are ‘subject to Australia’s obligations under international law’.29
There is insufficient space to deal with the complexities of the off- shore jurisdictional issues raised by the OPA but suffice for present pur- poses to state that they are complex and will provide for much litigation over the coming years and give rise to many legislative amendments. The problem does not lie with the drafters, who spent several years working on it and seeking comment on their drafts, but with the underlying weakness of the Offshore Constitutional Settlement 1979, which will be addressed shortly.
It may be helpful to emphasise that the outgoing PSLA and the in- coming OPA dealt only with regulation of petroleum exploration and exploitation. Other offshore mining was and is covered by the Offshore
Minerals Act 1994 (Cth), the jurisdictional aspects which are similar.30 In
thesamemannerasthePSLAandtheOPA,itgiveseffect in its offshore
26 Sections 7, 17. 27 Section 18.
28 Sections3,4.AustraliasubmitteditsclaimtothecontinentalshelfbeyondtheEEZ inNovember2004,underUNCLOSArt76,totheCommissionontheLimitsofthe Continental Shelf established under UNCLOS Annex II. It is consistent with UNCLOS PtVIandinternationallawthatthecontinentalshelfareasclaimable underUNCLOSbeyondtheEEZshouldbesubjecttothecoastalstate’smining andpetroleumjurisdiction.UnderUNCLOSArt77thecoastalstatehastheright toexploreandexploitthenaturalresourcesonitsclaimablecontinentalshelf. 29 Section 19.
30 The supporting Acts are the Offshore Minerals (Exploration Licence Fees) Act 1981, the Offshore Minerals (Mining Licence Fees) Act 1981, the Offshore Minerals (Regis- tration Fees) Act 1981, the Offshore Minerals (Retention Licence Fees) Act 1994, the Offshore Minerals (Royalty) Act 1981 and the Offshore Minerals (Works Licence Fees) Act 1981.
Source: Offshore Petroleum Act 2006, Section 5 map
application to the Offshore Constitutional Settlement 1979 and Aust- ralia’s offshore claims under UNCLOS. This area is from the limits of the State or Northern Territory, which is usually the low water mark or port limit, out to the three nautical mile limit from the baseline is described as ‘coastal waters’. In this area the State and Northern Territory mining laws apply. From the three nautical mile limit to the outer limit of the continental shelf the Commonwealth Offshore Minerals Act 1994 applies.31
The Act will need amendment to give effect to the OPA in place of the PSLA and this is in hand. The diagram (opposite) depicts the offshore geo- graphical application of the Act.
31 Sections 3, 5, 10(3), 13, 14, 16. This area excludes where the outer limit meets the limits of Australia’s sea boundaries with foreign countries; such as Indonesia, Papua New Guinea, Solomon Island etc.
Source: Offshore Minerals Act 1994, Section 13 map
When it comes to offshore installations other than petroleum ones, how- ever, these are addressed by the Sea Installations Act 1987 (Cth). The object of this Act is to ensure sea installations are installed and operated safely, to apply appropriate laws and ‘to ensure that such sea installa- tions are operated in a manner that is consistent with the protection of the environment’.32 Unless exempted, the owner or occupier of a sea
installation is guilty of an offence if a sea installation is installed in an adjacent area otherwise than in accordance with a permit.33 A ‘sea instal-
lation’ means any man-made structure, whether floating or in physical contact with the seabed, that can be used for ‘an environment related activity’ (but excludes a fixed structure such as a pipeline and a vessel exploring or exploiting natural mineral resources by drilling the seabed or its subsoil or obtaining substantial quantities of material therefrom).34
An ‘environment related activity’ is defined as meaning any activity rela- ting to tourism or recreation, carrying on business, exploiting the living resources of the sea or the seabed, marine archaeology or a prescribed
32 Section 3. 33 Section 14. 34 Section 4.
purpose.35 Thus it can be seen that the Act sets out to regulate most
activities other than those relating to oil, gas or minerals.
As presently comprised, the Sea Installations Act 1987 operates over the ‘adjacent area’ which includes the space above and below this area, which has been mentioned above in relation to the PSLA. It applies in the Coral Sea (off the Great Barrier Reef area); but not in any area over which, by international agreement, Australia does not exercise sovereign rights.36 Under the OPA the adjacent area becomes known as the
‘offshore area’.
The Sea Installations Act 1987 sets up a system of permits for instal- lations in the sea and prohibits persons carrying out any activity not allowed by the appropriate permit. Where the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) has application to sea installations
there are some requirements on the minister to make required decisions in good time.37 Where the minister considers that a sea installation is or
may constitute a threat to the safety of persons or that it is having or is likely to have an ‘adverse effect on the environment’ the minister may direct the owner of the permit to take requisite action and in default the minister may carry out the requisite action him or herself and claim the expenses therefore from the permit holder.38 The minister or an
‘interested person’ is empowered to seek an injunction from the court against any actual or proposed contravention.39 Wide powers are given
in relation to enforcement and there is provision for the enforcement and collection of a levy, the amount of which is based on the market value of the installation. Provision is made for review of decisions under the Act by the Administrative Appeals Tribunal. Fortunately, offshore installa- tions are not of major concern in threatening the marine environment but there are some aspects that need regulatory attention from time to time, especially the many installations for tourist purposes in the Great Barrier Reef.
Power for a levy is to be found in the Sea Installations Levy Act 1987 (Cth) which provides that where a sea installation is installed in accor- dance with a permit and ‘is being, or has been, used for an environment related activity’ a levy is imposed on the permit holder. The rate of the levy is fixed by the regulations.40
To summarise this section about offshore petroleum, mining and