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Trudie Atherton[1]
The Great Barrier Reef (GBR) has been described as one of the eight wonders of the world. It was formally recognised as a national treasure when it was declared a Marine Park in 1975 and soon after was inscribed on the World Heritage List as one of the world’s best examples of its type.
There are, however, complex jurisdictional and zoning issues. The geographical location of the GBR and boundaries of the GBR Marine Park and World Heritage Area overlap the maritime zones identified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), and straddle Australian state and federal marine transport jurisdictions giving rise to Commonwealth and Queensland state jurisdictional overlaps. In amongst this the main shipping channel along the north-eastern coastline of Australia weaves in and out and maritime tourist, fishing and recreational vessels criss and cross the area. In all, this creates endless opportunities for recreational activities and commercial exploitation of this beautiful and unique marine environment but at the same time it poses a threat to the preservation, conservation and management of its vast natural and living resources.
The tensions arising from these competing and, in some cases conflicting, uses of the GBR reflect many of the key issues in the law of the sea, particularly:
• Maritime claims and sovereignty;
• Maritime zones and permissible activities;
• Navigational rights and freedoms;
• Marine resource management and protection.[2]
This paper addresses the first three of these issues.[3] Within the GBR, it examines the current maritime boundaries, the regulatory and management regime of the GBR Marine Park and World Heritage Area, and the shipping regulations for marine passenger transport. The paper then canvasses the possibility of moving the territorial sea baseline (TSB) to the outer edge of the GBR thus effectively ensuring that the GBR becomes part of Queensland’s internal waters on the landward side of the new TSB.
Finally, the paper considers the probable resulting impacts and implications of such a move on national maritime zones, state/federal sovereignty and jurisdiction, permissible activities, and navigational rights and freedoms in the GBR.
Australia is an island state with one of the world’s longest maritime boundaries.[4] The GBR itself stretches over 2,000 kilometres from its most northerly point just south of Papua New Guinea along the north-eastern coastline of Australia to its most southerly point east-north-east of Bundaberg on the Queensland coast. It comprises over 2,900 unconnected reefs and about 940 islands and cays[5]
Figure 1. Maritime Zones in GBR
Source: Geoscience Australia4
The term ‘GBR’ means many things to many people. It can mean
1. the whole 2000 kilometres of the reef; or
2. the 1400 kilometre stretch of reef along the Queensland coast; or
3. the GBR Marine Park; or
4. the World Heritage Area;
and these terms are not necessarily coterminous. In this paper, where the term ‘GBR’ is used on its own it is referring to the second meaning above.
An area of the GBR was declared a marine park in 1975 and later, in 1981, a slightly larger area was inscribed as a World Heritage Site for its outstanding natural heritage values.[6]
It is presently not only the largest such site (covering an area of some 35 million hectares[7]) but is also one of the best known and most popular marine parks in the world.
Australia shares maritime boundaries with five other nations along its northern and eastern coastlines.[8] A discussion of these boundary delimitations is beyond the scope of this paper which will focus primarily on the GBR and the GBR Marine Park and World Heritage Area.
The Australian Maritime Boundaries Information System (AMBIS),[9] does not produce individual state maritime boundary zone maps for general exhibition and/or publication although the data is readily available. It is therefore possible only to illustrate the zones in the GBR in a very general schematic format. All maritime zones for international purposes are measured from the territorial sea baseline (TSB)[10] which is calculated from the point of the Lowest Astronomical Tide (LAT), in accordance with the provisions of UNCLOS. (See Figure 1.)
In fact, the GBR straddles various maritime zones[11] from the international point of view and a mixture of Commonwealth and Queensland waters from the Australian federal point of view. The internal and coastal waters, drawn from Queensland mainland and islands, are areas over which Queensland has state sovereignty.[12] The other areas are where the Commonwealth has sovereignty over some waters (Territorial Sea) and jurisdiction over the balance, namely the Territorial Sea beyond three nautical miles of the TSB,[13] the Contiguous zone,[14] Continental shelf and Exclusive Economic zones (EEZ).[15]
As the general reference map of the GBR Marine Park and World Heritage Area (Figure 2) indicates, the Australian seaward boundaries coincide. They follow closely the outer edge of the GBR and stay within national maritime zones[16]
Figure 2. Great Barrier Reef Marine Park and World Heritage Area
Source: Spatial Data Centre, GBRMPA
In 1975, most of the GBR[17] was declared a national marine park.[18] The GBR Marine Park extends from the mean low water mark of Queensland[19] but significantly it excludes Queensland’s islands and internal waters.[20] It is presently administered by the Commonwealth through its Great Barrier Reef Marine Park Authority (GBRMPA).[21] Within the GBR Marine Park, GBRMPA has management and planning authority which overlaps all the national maritime zones excluding, of course, Queensland’s internal waters. However, the GBRMPA and the Queensland government agencies work closely together and, in some cases, relevant officers have both Commonwealth and Queensland administrative authority.
One complexity, however, is that there is no correlation between the boundary delineating Queensland’s internal waters for the purposes of the GBR Marine Park and the TSB from which all other maritime zones are calculated.[22]
In 1981, an area of the GBR totalling approximately 348,000 sq km was inscribed on the World Heritage list of natural properties of outstanding universal values.[23] The GBR World Heritage Area extends from the mean low water mark of the mainland and includes all islands and internal waters of Queensland.[24]
As noted above, within its internal waters, Queensland administers the GBR World Heritage Area through its National Parks and Wildlife Service (NP&WS) while GBRMPA has responsibility for management of the GBR Marine Park in the coastal waters maritime zone and beyond. The two authorities work together on a cooperative basis as required.
In summary, the outer sea boundaries of the GBR Marine Park and World Heritage Area coincide,[25] but their inner boundaries do not, with the GBR World Heritage Area extending nearer to the coast,[26] hence producing the larger geographic area. Both the GBR Marine Park and World Heritage Area straddle the various national maritime zones including internal waters,[27] coastal waters, territorial sea, contiguous zone,[28] continental shelf and EEZ[29] thus attracting further jurisdictional issues, to be discussed below.
The inner boundary of the GBR Marine Park is measured from the median low water mark whereas the TSB delineating the various maritime zones is measured as at the lowest astronomical tide (LAT). The effect of this is to create a jurisdictional inconsistency between the meaning of Queensland’s internal waters for the purposes of delineating Australia’s maritime zones from the TSB in the region and for the purposes of determining the limit of authority of GBRMPA in the same area. On the one hand Queensland’s sovereignty stretches to the lowest astronomical tide and on the other it is constricted to the median low water mark.
Although Australia is a single coastal state from the international perspective, its internal political structure is a federation of states, with shared jurisdiction between states/territories and the federal government, as delineated in the Constitution.[30] However, the Constitution did not make it clear whether jurisdiction over Australian offshore matters[31] was to be conferred on the federal parliament or the state parliaments.[32]
To give effect to certain international conventions, the federal government passed the Seas and Submerged Lands Act in 1973 whereby the Commonwealth claimed sovereignty over the territorial sea (and certain Commonwealth rights in respect of the contiguous zone, exclusive economic zone (EEZ) and continental shelf). This was challenged by the States but the Act and the claim was upheld in the High Court.[33] Subsequent amendments to the Act have adopted the principles set out in UNCLOS[34] relating to territorial sea baselines and maritime zones and boundaries.
This success by the Commonwealth gave rise to administrative difficulties associated with the division of administration between the Commonwealth and states over the Australian offshore and adjacent internal waters respectively.[35] Consequently, an Offshore Constitutional Agreement (OCS) was negotiated at the Premiers’ Conference in 1979 to provide the basis for the division of power between the Commonwealth and states in relation to coastal waters[36]
and with respect to certain other matters.[37] The resulting Coastal Waters (State Title) Act 1980 (Cth) and Coastal Waters (State Powers) Act 1980 (Cth) conferred title in and power over coastal waters on the states and Northern Territory for three nm offshore, if they chose to exercise it, and effectively settled the matter.
Under The Great Barrier Reef Marine Park Act 1975 (Cth),[38] the GBR Marine Park was already in existence before the OCS. The boundaries of the GBR Marine Park were also set in accordance with that Act which gave GBRMPA jurisdiction over coastal waters within the Marine Park[39] consistent with the principles set down in the Seas and Submerged Lands Act 1973 (Cth) at that time but of course inconsistent with the later Commonwealth/state OCS and supporting legislation.[40]
This dilemma was resolved in two ways. First, by an agreement with Queensland[41] which acknowledged that in accordance with the OCS the boundaries of the GBR region would remain as defined by the The Great Barrier Reef Marine Park Act 1975 and to that extent unaffected by the OCS jurisdictional arrangements. Secondly, by express provision in the Coastal Waters (State Title) Act 1980 Queensland’s right and title to its coastal waters was made subject to the provisions of The Great Barrier Reef Marine Park Act 1975.[42]
At that time, the breadth of the territorial sea was three nautical miles and thus coincided with the coastal waters of Queensland.[43] As previously noted,[44] subsequent proclamations have adopted the principles set down in UNCLOS including extending the breadth of the territorial sea to 12 nautical miles.[45] However with no alteration of the OCS, the regulatory regime for the territorial sea in Australia is now split between the states out to three nautical miles and the Commonwealth assuming jurisdiction over the remainder.
Significantly, Queensland has relinquished partial sovereignty over its coastal waters because the area within the GBR Marine Park remains primarily governed by The Great Barrier Reef Marine Park Act 1975.
Tourism is the largest commercial activity in the GBR Marine Park with some 1.6 million visitors per year. The marine tourism industry contributes substantially to both Queensland’s and Australia’s economies.[46]
Accordingly, the many activities which attract tourists to the region, including recreational boating, fishing, diving, coral sea viewing (amongst others), drive much of the focus of the public and private institutional framework and management responsibilities in the GBR Marine Park and World Heritage Area.
Overall care, control and management rests with the Great Barrier Reef Marine Park Authority (GBRMPA)[47] whose primary function is to provide a framework for the conduct of sustainable marine-based activities in and uses of the GBR Marine Park. This necessarily balances the protection of the marine environment, conservation and preservation of its living and non-living resources with presentation of this unique natural World Heritage site for the benefit of current and future generations of visitors.[48] To achieve these goals, as mentioned above, GBRMPA works cooperatively with the Queensland Parks and Wildlife Service (QP&WS) which has sole jurisdiction over Queensland’s internal waters and its offshore islands.[49]
The other significant stakeholder in the GBR Marine Park is the private sector, comprised of some 730 tourist operators offering a diverse range of marine tourism activities.[50] These industry stakeholders also include fishing associations, scuba diving organisations, cruise and charter boat clubs, search and rescue groups to name just a few[51].
They play an important role in encouraging their members to, amongst other things, adopt best practice in their tourism operations, inform and educate visitors to the region about the GBR and its World Heritage values, and contribute to management initiatives and monitoring programs in the GBR Marine Park[52] This self regulation is an important and effective part of the regulatory framework.
Interestingly, the issues of concern for those managing tourism use in the GBR Marine Park reflect the recurrent themes in the Law of the Sea; namely, sovereignty over maritime zones and boundaries, conservation of the marine living and non-living resources and rights of navigation, which are discussed below.
Most of the waters of the GBR fall either within Australia’s territorial sea and its EEZ or within the internal and coastal waters of Queensland[53] where, importantly, most shipping trade takes place. (See Figure 3.) For marine passenger transport, this means that in the course of a voyage along the Queensland coastline, a cruise liner may be subject at different times, depending on its location[54] and its destination,[55] to either state or federal jurisdiction. In the event of a major marine incident, this jurisdictional complexity may well result in uncertainty over which particular set of rules should apply.[56]
Similar uncertainties exist with respect to freight transport.
UNCLOS provides a general framework for coastal states’ sovereignty and sovereign rights over their adjacent waters but also addresses several key issues with respect to shipping and maritime transport;[57] namely
(a) ‘accountability of the flag state,[58] strengthened environmental protection,[59] and increased port state control activity.[60]
These waters are defined under UNCLOS as being
...all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State…[61]
The IMO Convention establishes the International Maritime Organisation (IMO)[62] which has responsibility for regulating marine transport activities, particularly safety of shipping, prevention of marine pollution and liability and compensation to passengers in case of accident.[63]
Cruise shipping is one of the fastest growing sectors in the international tourism industry with an annual world growth of eight per cent and an estimated worth of $17 billion per year.[64] Cruise ships (usually defined as a ship carrying more than 12 passengers) on international voyages must comply with all relevant IMO regulations.
Australia is a major maritime user, being the fifth largest user of shipping worldwide[65] and has a growing cruise liner industry operating in its waters, especially in the GBR. Australia has ratified many of the international maritime conventions[66] and enacted them into domestic laws at both the federal and state levels so that these principles also apply in Australia’s various maritime zones.
Table 1 is a guide to the relevant marine passenger transport legislation and regulatory authorities having jurisdiction in the GBR[67] with respect to safety of shipping, protection of the marine environment and liability and compensation in case of loss or injury.
As Table 1 illustrates, the regulatory framework for sea transport in the GBR is complex in terms of overlapping state and federal jurisdictions and the many governmental agencies involved in the management and administration of the legislation resulting in a somewhat confusing and potentially inconsistent body of rules.
The IMO and other UN bodies have set international standards for safety of shipping, prevention of marine pollution, protection of the marine environment and liability and compensation in the event of loss or injury.[68]
There is no greater need for these ‘best practice’ measures to be implemented than in the waters of the GBR[69] where there are hazardous reefs, rocks and shallow waters to negotiate, universally recognised sensitive ecosystems and biodiversity to protect, and some of the world’s most popular marine tourism activities to facilitate[70][71][72][73][74]
Sea passenger transport and its operations can contribute significantly to pollution of the GBR marine environment by affecting its water quality, habitats and coastal amenity particularly through waste disposal, oil and chemical spills and, worst of all, shipwrecks.[75] A number of steps have been taken to address these various concerns.
UNCLOS envisaged the recognition and designation of ‘specially sensitive areas’ requiring a higher level of protection than other areas of the sea.[76] The IMO has developed this concept further with a set of guidelines for the identification and designation of such Particularly Sensitive Sea Areas (PSSAs) and these guidelines appear in the Annexes to the MARPOL Convention.[77]
PSSAs are protected by introducing ship routing measures (for example, areas to be avoided altogether; areas within defined limits where navigation is particularly hazardous; areas to be avoided by certain classes of ship and so on). They can straddle all maritime zones and may impact on traditional rights of navigation.[78]
In November, 1990, after much lobbying from Australian agencies,[79] the IMO designated the GBR the first such PSSA requiring special protection because of its vulnerability to damage from international maritime activities.[80]
Following the GBR PSSA designation, in October 1991 the IMO endorsed a scheme of compulsory pilotage for some ships[81] which may pose a potential environmental hazard transiting in specified waters[82] of the GBR Marine Park and World Heritage Area. The scheme operates in Queensland’s internal and coastal waters and Australia’s territorial sea beyond three nautical miles unlike most compulsory pilotage schemes elsewhere which operate only in internal waters.[83]
The concept of compulsory pilotage itself is clearly a limitation on the right of innocent passage [84][85] in the territorial sea as defined in UNCLOS.[86]
In those parts of the GBR waters where pilotage is not compulsory but strongly recommended,[87] AMSA and Queensland Transport (QT) have introduced a scheme of voluntary pilotage for ‘...masters unfamiliar with these parts of the Reef [who] should use a licensed pilot...’[88] to assist them through the restricted shipping lanes.[89]
In addition to the above measures which are designed to enhance safety of life at sea and to protect the marine environment, AMSA and QT have developed the Queensland Safe Havens Guidelines[90] in cases where an incident has already occurred at sea to minimise injury and loss of life and to further reduce the risks of marine pollution and environmental damage caused by a disabled or damaged ship within prescribed waters[91] of the GBR. (See Figure 4.)
The objectives of the Queensland Safe Havens Guidelines are threefold. They are to:
1. safeguard the health and safety of the ship’s crew and others within the immediate area of an incident
2. protect the environmental, economic and amenity values of areas within the prescribed area of the guidelines
3. preserve the safety of the vessel and its cargo…
by the introduction of certain procedures and mechanisms to assess requests for assistance in a timely manner.
In a similar way, GBRMPA has identified 25 cruise ship anchorages throughout the GBR Marine Park which allow cruise ship operators to access a range of reefs and islands that meet safety and environmental parameters.[92]
The Inner Route of the GBR waters is a busy sea traffic lane stretching the length of the GBR Marine Park and World Heritage Area. It crosses Queensland’s internal and coastal waters and Australia’s territorial sea (beyond three nautical miles) and EEZ. In particular, cruise ships visiting the Whitsunday Islands in North Queensland venture into Queensland’s internal waters. As the ships pass through the various national maritime zones, they become subject to different jurisdictions including that of GBRMPA and state and federal shipping laws without necessarily being aware of this fact.
Should a cruise ship visiting the GBR experience an ‘incident’ involving loss of life or injury at sea, the limitation of liability of its shipowner will vary. Much depends upon a number of factors including the tonnage of the vessel and whether it is on an intrastate, interstate or international voyage.
First, the Limitation of Liability for Maritime Claims Act 1989 (Cth) enacts into Australian law the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC). This provides the current system for the limitation of liability of sea-going ships in Australia with respect to loss of life and personal injury.[93] The Convention applies only to sea-going ships so ships which ply inland waters, lakes, rivers, ports and harbours are non-sea-going and therefore beyond the protection of the Convention. While there is provision within the LLMC for state parties to limit the liability of non-sea-going ships,[94] this has not been done at state or federal level[95] to date thus leaving non-sea-going shipowners exposed to unlimited claims for compensation.[96]
Secondly, pursuant to the LLMC, when passengers suffer loss of life or personal injury aboard a sea-going ship, claims for compensation may be made without further proof up to the limit of liability.[97] If, however, claimants can prove that the loss resulted from ... personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result[98] then the shipowner’s liability is unlimited.
Of course, no claim is successful until liability is established. This gives rise to issues of the ship’s seaworthiness and questions of negligence on the part of the shipmaster and his crew. Minimum standards of seaworthiness and criteria for establishing negligence in the operation of a vessel in all of Queensland’s coastal, GBR Marine Park and territorial waters are therefore relevant.
In relation to breaking the upper limitation amount, for example, what if a ship’s master, unfamiliar with parts of the GBR waters, refuses the assistance of a licensed pilot in a non-compulsory pilotage area, then strikes a reef and fails to request permission to enter one of Queenland’s safe havens causing loss of life and personal injury? Is that sufficient evidence of negligence to establish liability and will the answer depend upon whether the incident occurred subject to the legislative shipping regime of Queensland’s coastal waters, GBRMPA or the Commonwealth’s territorial sea?[99]
As Figure 5 suggests, considering the present volume of cruise shipping within the GBR and its expected growth in popularity within the coming years, this is definitely an issue.
Much has already been said in this paper regarding the various maritime zones which straddle the GBR waters. Yet if the Territorial Sea Baseline (TSB) were moved to the outer edge of the GBR, many of the tensions about mixed jurisdictions outlined in previous sections would melt away. The waters on the landward side of the outer edge would become internal waters of Queensland and thus subject to Queensland sovereignty and jurisdiction alone.[100]
Of course, regardless of whether the Commonwealth or Queensland wins or loses jurisdiction, collectively Australia would gain jurisdiction over additional significant territory and sovereign rights to natural living and non-living resources in the EEZ which itself justifies a reconsideration of the matter in the national interest.
Although this may appear to be an extreme approach and one which would probably meet with strong opposition from the Commonwealth government and its agencies, there are several compelling reasons to consider its implementation.
First, UNCLOS makes provision for every coastal state to draw its TSB according to certain technical criteria[101] and then to proclaim its validity by publishing it on charts and maps.[102] This is a reasonably subjective process and one which may be conducted adopting either a conservative or generous approach because it does allow the coastal state to determine certain factors affecting the TSB, such as:
• ‘whether baselines depart to an appreciable extent from the coastline;
• whether low tide elevations can be relied upon as basepoints;
• the status of certain reefs and rocks; and
• whether a bay is “historic”’.[103]
It appears that in the case of Australia’s TSB, the former more conservative approach may have been adopted
...as a consequence of federal tensions and the potential for state powers and title over certain offshore waters to be extended as a result of any redrawing of baselines and expansion of internal waters...[104]
although one commentator has referred to the ‘generous application of the baselines by the Commonwealth...’[105]
In particular, it is the conservative application of straight baselines along the Queensland coastline and in the GBR waters that could be reviewed. In this area, many of the coral cays, fringing islands, fringing reefs, archipelagic islands and the barrier reef itself are presently not included in the TSB.
To comply with UNCLOS, the drawing of such straight baselines
must not depart to any appreciable extent from the general direction of the coast and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.[106]
An examination of the boundaries of the GBR Marine Park and World Heritage Area[107] clearly demonstrates that the outer edge of the GBR does follow the general direction of the Queensland coastline. Where the boundary extends well out to sea[108] there is an abundance of islands, fringing reefs, archipelagic islands and the barrier reef dominating those waters and so it could also be argued that even at its furthest easterly point, the GBR does have a sufficient connection to Queensland for it to be included in the application of straight baselines. In addition, UNCLOS does not place a limit on the length of a straight baseline unlike the requirements set down for Archipelagic States’ baselines.[109]
Secondly, one of the major constraints on a coastal state declaring a ‘generous’ TSB is the impact it may have on opposite or adjacent coastal states which may be inclined to contest the validity of such a TSB.[110] Fortunately, along its north-eastern coastline, Australia has no opposite or adjacent[111] coastal state neighbours nearby who might immediately be expected to raise concerns if Australia’s territorial sea and EEZ boundaries were pushed out a further 12nm and 200nm respectively applying the outer edge of the GBR as the TSB. Indeed the new maritime zone boundaries would more likely encroach upon the Commonwealth’s own Coral Sea Islands Territory.[112]
Thirdly, the MARPOL Convention 73/78 and its annexes[113] ‘nearest land’ is defined as ‘the baseline from which the territorial sea is measured’ and ships are required to be a specified distance from ‘nearest land’ before discharging pollutants and wastes. Interestingly, an exception has been made in the case of the north-eastern coast of Australia to address this issue. Here ‘nearest land’ is defined as
a line drawn between a series of co-ordinates encompassing the entire Great Barrier Reef and the shipping routes through the Torres Strait. [T]his line commences near the northern tip of Cape York, and encompasses Torres Strait, continuing along the outer edge of the Great Barrier Reef and rejoining the Queensland coast near Fraser Island.[114]
It is noted that this provision exists primarily to prevent ships from discharging wastes in the GBR and is not related to the TSB or any possible territorial claims. However, it does provide further support for the proposition that the outer edge of the GBR could be the TSB.
Finally, there are international precedents supporting the view that islands, many miles offshore,[115] are being used as basepoints for determining the TSB and that reefs well outside the 12-nautical-mile territorial sea are being claimed by coastal states.[116]
If the TSB were effectively moved to the outer edge of the GBR, this would locate the whole of the GBR Marine Park and World Heritage Area within Queensland’s internal waters and therefore subject to Queensland’s sovereignty and jurisdiction conditional upon the Commonwealth’s trade, foreign affairs and other powers as examined in the Tasmanian Dams case.[117] The Coastal (State Title) Act 1980 would require amendment bringing Queensland’s right and title to its coastal waters into line with other states and territories.
This might resolve the anomalous position which presently exists whereby Queensland has relinquished partial sovereignty over its coastal waters in the GBR Marine Park to the Commonwealth agency GBRMPA.[118] Similarly if the TSB were moved, the GBR Marine Park and World Heritage Area boundaries would become aligned thus removing one further anomaly which presently exists under the current regime.[119]
In practical terms, however, such a move would have huge management, financial, technical and capacity implications for those Queensland agencies having a new responsibility for shipping, coastguard surveillance, resource usage and the environment in the GBR. It is therefore likely that the GBRMPA regime would continue albeit under greater control from its Queensland stakeholders.
Presently, GBRMPA’s jurisdiction does not extend to Queensland’s internal waters nor to the great majority of islands off the Queensland coastline. As mentioned above, it shares responsibility for the management of those parts of the World Heritage Area that fall within Queensland’s jurisdiction with Queensland agencies such as the National Parks and Wildlife Service (NP&WS).[120]
Although power and authority would necessarily shift to Queensland in any re-alignment of the TSB, GBRMPA is a unique management concept and there is no doubt an important ongoing need for the technical, research and management skills and financial capacity which such an agency provides and with whom Queensland has had such a longstanding successful cooperative relationship. The Great Barrier Reef Marine Park Act 1975 would need to be amended to reflect the changed circumstances.
From the Commonwealth’s perspective, there are several issues to address. First, the obligations imposed on Australia by the World Heritage Convention 1972 pursuant to its listing of the GBR World Heritage Area cannot be wholly delegated to Queensland. There must be an ongoing system of checks and balances to protect the GBR from risks such as that of oil drilling on the reef as happened in the past.[121] Fortunately, there are now precedents[122] for the federal government to intervene if such unsustainable activities were to take place in the GBR World Heritage Area using its external affairs power under the Constitution[123] and the World Heritage Convention principles.
Secondly, as mentioned above, although the creation of an expanded internal waters regime for Queensland would eliminate all other maritime zones within the GBR waters, it would present the Commonwealth with the opportunity to lengthen overall its Australian maritime boundaries pushing its territorial sea and EEZ out towards its Coral Sea Islands Territory in the Pacific Ocean.
Undoubtedly, Australia would become responsible for protecting and defending a greater offshore area possibly requiring the need to strengthen its surveillance, enforcement and other management resources including an upgrade if its present coastguard and naval capabilities in the area. Of course, the economic costs of this should be compared with the economic benefits which Australia would gain from the additional natural living and non-living resources of this area and their revenue earning potential to ensure that it is in Australia’s interests to lengthen the boundary.
Thirdly, the division of federal and state powers is an internal matter. From the international perspective, Australia is a single coastal state and the wisdom of moving the TSB to the outer edge of the GBR will be assessed balancing the level of concern it causes its adjacent and opposite coastal state neighbours with the benefits to be gained in increasing its maritime boundaries. As noted, Australia already shares maritime boundaries with five other countries along its northern and eastern coastline (although an examination of these agreements is beyond the scope of this paper). However, it may be fortunate enough to have few neighbours who are adversely affected by the proposed changes to the TSB in the GBR.
The main shipping route in the GBR is the Inner Route. There is also the Outer Route.[124] As it presently stands, marine passenger transport cruising along the Inner Route is subject to a myriad of rules and regulations.[125] The Outer Route, as its name suggests, skirts around the outer edge of the GBR beyond the coastal waters of Queensland and ships sailing along this sea route may pass through Australia’s territorial sea, contiguous zone and EEZ before reaching international waters.
If the TSB were relocated to the outer edge of the GBR, the whole of the Inner Route would become part of Queensland’s internal waters and subject only to Queensland’s shipping transport laws. This could seriously affect the right of navigation through these waters and lead to a possible extension of the compulsory pilotage requirement in this special sea area.
However, although there is generally no right of innocent passage in internal waters,[126] UNCLOS makes an exception in Article 8(2):
Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.
This should satisfy most international shipping concerns and objections particularly those from passenger ships wishing to traverse this inner sea route.
On the other hand, ships using the Outer Route which now travel through national and international maritime zones along this sea route would be exposed to a national regulatory regime consistent with other parts of the Australian coastal waters, territorial sea and EEZ. Finally, under MARPOL ships are already required to consider the outer edge of the GBR as ‘nearest land’ for the purposes of the disposal of pollutants and wastes. From that standpoint, no changes would be necessary.
It is of considerable concern that the GBR has a complex regulatory regime. There is so much potential for conflict and inconsistency arising out of the tension between Commonwealth and State maritime claims, administering one of north-eastern Australia’s busiest sea transport routes across national maritime zones, meeting the obligations that world heritage listing imposes on the GBR Marine Park and World Heritage Area and managing the recreational activities at Australia’s most popular marine tourism destination.
The somewhat cumbersome, confused and conflicting regulatory framework which operates in the GBR has historical underpinnings but it is now time to revisit, review, simplify and harmonise that framework for the benefit of all.
To advance the rationalisation of the GBR regulatory regime, several steps are recommended:
• First, AMBIS has the data and should publish state by state maritime zone maps and make this information freely available to all members of the public not just to other government agencies;
• Secondly, a Geographic Information System (GIS) should be developed which shows the various maritime zones in relation to the GBR Marine Park and World Heritage Area to assist marine transport operations in the area;
• Thirdly, the definition of ‘low water mark’ for the purposes of determining Queensland’s internal waters with respect to its present maritime zones and marine park boundaries is inconsistent and should be clarified;
• Fourthly, Queensland’s state sovereignty over its coastal waters is compromised in the GBR Marine Park in direct contradiction of the principles of UNCLOS as interpreted within Australia’s federal/state maritime regime. Although the Emerald Agreement between Queensland and the Commonwealth confirmed this position, it remains an historical anomaly and one that interferes with Queensland’s state’s rights and should be reviewed;
• Fifthly, Australian agencies including GBRMPA, AMSA and QT should harmonise operational standards for cruise ships within the GBR so as to avoid discrepancies in statutory obligations placed on shipowners and operators;
• Sixthly, this paper has identified many of the benefits and some of the costs of moving the TSB as suggested. To accurately inform the political decision-making process, a detailed cost benefit analysis should be undertaken; and
Finally, many of the above recommendations could be more simply achieved if Queensland’s present territorial sea boundary were moved to the outer edge of the GBR. This would result in a ‘win/win’ situation for both the Commonwealth (by extending the overall length of its maritime boundary) and the State of Queensland (by expanding its sovereignty in the GBR).
[1] Trudie Atherton has a longstanding interest in tourism law and policy and has practised, lectured, written and consulted on these subjects in Australia and internationally. She is currently undertaking doctoral research at the University of Sydney on the regulation of marine tourism. She holds a BA, LLB (Hons) and LLM (Tourism Law).
[2] See D Rothwell, ‘The Law of the Sea in the Asia Pacific Region: An Overview of Trends and Developments’, in Chinese Yearbook of International Law and Policy, vol. 13, 1994-95, pp. 81-110.
[3] Marine resource management and protection is beyond the scope of this paper.
[4] At the limit of the EEZ measured from the territorial sea baseline it is equal to about 50% of the Earth’s circumference at the Equator. See W Gately, Commodore RAN & C Moore, Lieutenant Commander RAN, ‘Protecting Australia’s Maritime Borders: The Operational Aspects in Protecting Australia’s Maritime Borders: The MV Tampa and beyond’, Wollongong Papers on Maritime Policy, no. 13, pp. 37-58, 2002.
[5] Geoscience Australia: Maritime Boundary Definitions (2 May 2005).
[6] See UNESCO, Convention for the Protection of Cultural and Natural Heritage 1972, Art. 2. The GBR World Heritage area is: an outstanding example representing the major stages in the earth’s evolutionary history; an outstanding example representing significant ongoing ecological and biological processes; an example of superlative natural phenomena; and containing important and significant habitats for in situ conservation of biological diversity. Source: Australian Government Department of the Environment and Heritage http://www.deh.gov.au/heritage/worldheritage/sites/gbr/index.html, 2 May 2005.
[7] Australian Government Department of the Environment and Heritage, http://www.deh.gov.au/heritage/worldheritage/sites/gbr/index.html, 2 May 2005.
[8] Indonesia, Papua New Guinea, Solomon Islands, New Zealand, France (New Caledonia).
[9] This is the national mapping division of Geoscience Australia and the body responsible for delineation of Australia’s maritime zones.
[10] Proclaimed and published in the Commonwealth of Australia Gazette, S29, 9 February 1983.
[11] The TSB and maritime zones are established under the Seas and Submerged Lands Act 1973 (Cth). See Section 3, which gives Australian domestic law effect to UNCLOS.
[12] .For further discussion of this point see below. The TSB from Gladstone to Bowen goes well out to sea taking in Swain Reefs, the Cumberland Islands, the Lindeman Group and the Whitsunday Islands and leaving all the waters on the landward side of the baseline as internal waters. Source: AMBIS.
[13] In the far north near Cairns, the TSB follows the coastline more closely.
[14] Not to exceed 24 nm from TSB. Declared, proclaimed and published in Commonwealth of Australia Gazette S148 7 April, 1999.
[15] Particularly in the southern section of the GBR Marine Park near Bundaberg and again in the far northern section. Source: AMBIS. Not to exceed 200 nm breadth measured from the TSB. Promulgated by Commonwealth of Australia Gazette S290, 29 July 1994.
[16] Spatial Data Centre, GBRMPA.
[17] The total area of the Great Barrier Reef region is approximately 346,000 sq km compared with the Great Barrier Reef Marine Park which comprises a total area of approximately 345,400 sq km.
[18] See The Great Barrier Reef Marine Park Act 1975 (Cth).
[19] It is interesting to note the difference between the Lowest Astronomical Tide calculation used for determining the Territorial Sea Baseline and the Mean Low Water mark, which is the average of all low tides in an area over the previous 18 years or so, used for determining GBR Marine Park Boundaries. The practical result of this is that for the purposes of ‘internal waters’ of Queensland, the TSB under the Seas and Submerged Lands Act 1973 (Cth) is more generous than the authority handed to GBRMPA under The Great Barrier Reef Marine Park Act 1975 (Cth) but this point does not seem to have been questioned or challenged in the past. A source within GBRMPA has suggested that if the matter were contested, the answer would probably be by reference to the meaning given to ‘low tide’ by the common law at the time of federation.
[20] See also Seas and Submerged Lands Act 1973 (Cth) for other exclusions.
[21] Further discussion of the role of GBRMPA is provided later in this paper.
[22] See General Reference map (Figure 2). For example, the offshore waters from just south of Mackay to Bowen include the Whitsunday Group, the Lindeman Group and the Cumberland Islands, all of which are on the landward side of the TSB (Source: AMBIS) but apparently lie within the GBR Marine Park and World Heritage Area.
[23] See UNESCO Convention for the Protection of Cultural and Natural Heritage 1972 Art. 2 .
[24] See also Seas and Submerged Lands Act 1973 (Cth) exclusions.
[25] Source: GBR Explorer General Reference Map (2 May 2005) http://www.reefed.edu.au/explorer/maps/general.html.
[26] A practical example of this distinction is Hinchinbrook Island which encloses Queensland’s internal waters on the landward side of the island. GBR Marine Park boundary runs along the seaward side of the island whereas the GBR World Heritage Area boundary runs along the mainland.
[27] e.g. along the Whitsunday coast.
[28] e.g. See Figure 3: Designated Shipping Areas map. Much of the Inner Route crosses coastal waters, territorial sea and the contiguous zone.
[29] e.g. The southern section of the GBR Marine Park south of Gladstone.
[30] Constitution of Australia Act 1900 (Imp).
[31] e.g. Such as fisheries, shipping, navigation.
[32] D Rothwell, ‘The Legal Framework for Ocean and Coastal Management in Australia’ Ocean and Coastal Management, vol. 33, pp. 41-61, 1997.
[33] See also New South Wales v Commonwealth (The Seas and Submerged lands Act Case) [1975] HCA 58; (1975) 135 CLR 337 in which the High Court held that the boundaries of the states terminated at the low water mark or state historic boundaries and that the Commonwealth had full power to legislate over the territorial sea, thus confirming the validity of the Seas and Submerged Lands Act 1973.
[34] The Convention entered into force in Australia on 16 November 1994.
[35] D Rothwell, op. cit., p. 51.
[36] Under OCS, the states and Northern Territory have jurisdiction over coastal waters which comprise the states’ internal waters and internal waters as defined in the international law sense, i.e. the waters on the landward side of the baselines drawn in accordance with UNCLOS and the territorial sea up to the first three nautical miles seaward from the baselines. Source: Australian Maritime Safety Authority: Great Barrier Reef Review of Ship Safety and Pollution Prevention Measures, http:// www.amsa.gov.au/Shipping_Safety/Great_Barrier_Reef_and_Torres_Strait/GBR_Review_Report/Shipping_in_the_GBR.asp, 29/03/2005.
[37] These included the regulation of shipping and navigation, offshore petroleum exploration, crimes at sea and fisheries.
[38] See discussion earlier in this paper.
[39] See The Great Barrier Reef Marine Park Act 1975 (Cth), Sect 5 Object of this Act:
(1) The object of this Act is to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region in accordance with the provisions of this Act, to the extent that those provisions are within the legislative powers of the Parliament and, in particular but not to the exclusion of any other relevant power, its powers with respect to or in relation to: (a) the Australian coastal sea; (b) rights (including sovereign rights) and obligations of the Commonwealth in relation to the continental shelf of Australia; (c) external affairs; (d) fisheries in Australian waters beyond territorial limits; (e) places acquired by the Commonwealth for public purposes; (f) trade and commerce with other countries, including the import or export of animals and plants; (g) statistics relating to animals and plants; and (h) matters incidental to the execution of the powers of the Government of the Commonwealth.
[40] It is important to observe that pursuant to Coastal Waters (State Powers) Act 1980, Section 3, ‘coastal waters of the State’ means, in relation to each State: (a) the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of the state, other than any part referred to in subsection 4(2); and (b) any sea that is on the landward side of any part of the territorial sea of Australia and is within the adjacent area in respect of the state but is not within the limits of the state or of a territory.
[41] The Emerald Agreement was entered into between the Prime Minister and the Premier of Queensland on 14 June 1979. It provided for both governments to continue to manage the islands, reefs and waters of the GBR in a cooperative and complementary way. Specifically, it provided for day-to-day management of the GBR Marine Park to be carried out by Qld Agencies.
[42] See Section 4(3) Vesting of title in States. ‘The rights and title vested by subsection (1) are vested subject to the operation of the Great Barrier Reef Marine Park Act 1975
and accordingly are so qualified that nothing contained in, or done under, that Act shall be taken to constitute an infringement of, or derogation from, any such right or title.’
[43] Coastal Waters (State Powers) Act 1980, Section 4 Extent of territorial sea and coastal waters: ‘If at any time the breadth of the territorial sea of Australia is determined or declared to be greater than three nautical miles, references in this Act to the coastal waters of the State do not include, in relation to any State, any part of the territorial sea of Australia that would not be within the limits of that territorial sea if the breadth of that territorial sea had continued to be three nautical miles.’
[44] See discussion above, under Law of the Sea Legislative Framework.
[45] UNCLOS Art. 3. TSB proclaimed and published in the Commonwealth of Australia Gazette S29 9 February 1983; Contiguous Zone declared, proclaimed and published in Commonwealth of Australia Gazette S148 7 April, 1999; EEZ promulgated by Commonwealth of Australia Gazette S290 29 July 1994.
[46] Year Book Australia 2003 Tourism Special Article:– ‘Sustainable tourism in Great Barrier Reef Marine Park’, 09/05/2005, http://www.abs.gov.au/Ausstats/abs@.nsf/0/b1a5050a50698219ca256cae00161aeb?Open Document.
[47] Established pursuant to Sect. 6 of The Great Barrier Reef Marine Park Act 1975(Cth).
[48] See M Perri, ‘Towards a Comprehensive Oceans Policy for Australia in Oceans Management Policy; The Strategic Dimension’, Wollongong Papers on Maritime Policy, no. 1, pp. 19-36, 1994.
[49] It has already been observed above that the GBR World Heritage Area extends into Queensland’s internal waters and thus beyond the jurisdiction of GBRMPA.
[50] Year Book Australia 2003, loc. cit.
[51] Spatial Data Centre, GBRMPA
[52] ibid.
[53] See discussion above and Figure 3.
[54] EEZ, territorial waters, coastal or internal waters of Queensland.
[55] Overseas, interstate or intrastate.
[56] Australian Maritime Safety Authority: Great Barrier Reef Review of Ship Safety and Pollution Prevention Measures http://www.amsa.gov.au/Shipping_Safety/Great_Barrier_Reef_and_Torres_Strait/GBR_Review_Report/Shipping_in_the_GBR.asp, 29/03/2005.
[57] Karandawala Geeta & L Barrie, ‘Implications for Shipping and Maritime Transport in The United Nations Convention on the Law of the Sea: What it means to Australia and Australia’s Marine Industries’, Wollongong Papers on Maritime Policy, no. 3, pp. 107-114, 1996.
[58] UNCLOS, Arts. 90-91.
[59] UNCLOS, Arts. 21, 56.
[60] LOSC, Art. 219.
[61] See LOSC, Art. 86.
[62] The Convention of the Intergovernmental Maritime Consultative Organization 1958, later changed to the International Maritime Organization Convention. It complements this framework for shipping in international waters and is responsible for the many IMO conventions. The IMO is based in London and is the United Nations’ specialist agency concerned with shipping and marine pollution.
[63] See International Maritime Organisation, 10/05/2005, http://www.imo.org/home.asp.
[64] Source: Tourism Council of Australia. P Young (Managing Director), Address to 1999 Cruise Industry Conference, Sydney, August 1999.
[65] Gately & Moore, op. cit.
[66] No less than 40 Conventions, Protocols and Annexes. Source IMO Status of Conventions, 10/05/2005, www.imo.org.
[67] An exhaustive list of all legislation affecting the GBR area is beyond the scope of this paper.
[68] Refer to Table 1.
[69] There are 2,900 reefs, including 760 fringing reefs, 360 coral cays and 618 continental islands.
[70] The first version was adopted in 1914, in response to the Titanic disaster.
[71] Establishes a scientific system for permanent protection of cultural and natural heritage of outstanding universal value.
[72] First ever comprehensive anti-pollution convention. Not only deals with pollution by oil, but also pollution by other chemicals, harmful substances, garbage and sewage.
[73] Limits are specified for two types of claims – claims for loss of life or personal injury, and property claims (such as damage to other ships, property or harbour works).
[74] Marine tourism is the general term used for marine-related tourism activities and attractions. It includes both ecotourism and adventure tourism activities conducted on or near the sea. Vessel-based activity includes whale and dolphin watching, diving and snorkelling, parasailing, observation by glass-bottomed boats and underwater observatories, crewed and bareboat cruising, fishing charters, helicopter and aircraft tours, boat hire, and cruise shipping to personal water vehicles.
[75] I Lambert, ‘Environmental Protection Implications in The United Nations Convention on the Law of the Sea: What it means to Australia and Australia’s Marine Industries’, Wollongong Papers on Maritime Policy, no. 3, pp. 115-124, 1996.
[76] UNCLOS, Art 211 (6).
[77] MARPOL 73/78, Annexes I, II IV & V.
[78] R Warner, Commander RAN, ‘Environmental Concerns: Their Impact on Activities at Sea’ in Rights and Responsibilities in the Maritime Environment: National and International Dilemmas, Wollongong Papers on Maritime Policy, no. 5, pp. 9-46, 1996.
[79] For further discussion see P McGrath, ‘Rights and Responsibilities – Shipping’ in Rights and Responsibilities in the Maritime Environment: National and International Dilemmas, Wollongong Papers on Maritime Policy, no. 5, pp. 57-66, 1996.
[80] There are presently seven such designated PSSAs in the world, the others being the Sabana-Camagüey Archipelago in Cuba (1997); Malpelo Island, Colombia (2002); the sea around the Florida Keys, United States (2002); the Wadden Sea, Denmark, Germany, Netherlands (2002); Paracas National Reserve, Peru (2003); and Western European Waters (2004). Source IMO, http://www.imo.org/home.asp, 12/04/2005.
[81] These are referred to as ‘specified vessels’ within the meaning of the Great Barrier Reef Marine Park Act 1975 (Cth) and apply to all vessels of 70 metres or more in length and to all loaded oil, chemical and liquefied gas tankers regardless of length.
[82] The Inner Route from Cape York to Cairns, the area within the Whitsunday Islands and Hydrographers Passage. Australia is also seeking international agreement to extend compulsory pilotage to the Torres Strait. See McGrath, op. cit.
[83] AMSA, Review of ship safety and pollution prevention measures in the Great Barrier Reef July 2001, p. 66 12/05/2005, http://www.amsa.gov.au/Shipping_Safety/ Great_Barrier_Reef_and_Torres_Strait/GBR_Review_Report/Extension_of_pilotage_area.asp.
[84] AMSA: Safe Havens Policy and Practice in Australia, 14/05/2005, http://www.amsa.gov.au/About_AMSA/Corporate_information/AMSA_speeches/Safe_Havens_and_Salvage_Conference/Policy_and_Practice_QLD.asp.
[85] For further discussion see D Rothwell, ‘Navigation Rights and Freedom’ in The United Nations Convention on the Law of the Sea: What it means to Australia and Australia’s Marine Industries, Wollongong Papers on Maritime Policy, no. 3, pp. 163-190, 1996.
[86] UNCLOS, Arts. 17-18.
[87] The Inner Route from Cairns to the southern limit of the GBR, including Grafton and Palm Passages.
[88] AMSA, loc. cit.
[89] Australia also seeks compulsory pilotage in the Torres Strait but so far without success because it is an international strait.
[90] First produced in 1994 and subsequently updated in 1999.
[91] These are defined in the guidelines as: Queensland Coastal Waters; waters of the Australian Territorial Sea; waters of the GBR World Heritage Area; waters of Australia’s EEZ; the High Seas where an incident has the potential to affect Australia’s interests.
[92] Source GBRMPA http://www.gbrmpa.gov.au/corp_ site/ key_issues/tourism/cruise_ships.html, 17/05/2005.
[93] LLMC, Art. 2.
[94] LLMC, Art. 15(2).
[95] Limitation of Liability for Maritime Claims Act 1989 (Cth) s.5 makes way for State legislation giving effect to the London Convention.
[96] See TC & TA Atherton, Tourism Travel & Hospitality Law, Law Book Company, para [12.80], 1998.
[97] This is calculated in accordance with LLMC, Art. 7.
[98] LLMC Art. 4.
[99] For a detailed discussion of these issues, refer to M White, Limitation of Liability, Chapter 10 in Australian Maritime Law, 2nd edn, The Federation Press, 2000.
[100] Source Tourism Queensland, 17/05/2005.
[101]UNCLOS, Sect 2 Arts. 5, 7, 8, 9, 10.
[102]UNCLOS, Art. 16.
[103]Rothwell, 1994-95, op. cit., pp. 81-110.
[104]See Rothwell, 1996, op. cit. pp. 163-190.
[105]S Kaye, ‘The Offshore Constitutional Settlement and its Impact on Enforcement Issues’, in Policing Australia’s Offshore Zones; Problems and Prospects, Wollongong Papers on Maritime Policy, no. 9, pp. 224-38, 1997.
[106]UNCLOS, Art. 7 (3).
[107]See Figure 2.
[108]A little south of Mackay the outer boundary of the GBR Marine Park extends almost 400 nm from the mainland but at this point the TSB is also well off the coastline passing around Swain Reef. See Figure 2. Source: AMBIS.
[109]UNCLOS Art. 47.
[110]Rothwell, 1994-5, loc. cit.
[111]With the possible exception of the far north region and Torres Strait.
[112]This Territory comprises many small islands (comprising 81 sq km) within a huge defined sea area of 780,000 sq km. The sea area, which is not part of the Territory, extends east and south from the outer edge of the Great Barrier Reef and includes Heralds Beacon Island, Osprey Reef, the Willis Group and 15 other reef/island groups.
[113]MARPOL 73/78 Annexes I, II & V.
[114]AMSA: Operational Discharges in the Great Barrier Reef and Torres Strait, 16/05/2005, http://www.amsa. gov.au/Shipping_Safety/Marine_Notices/2004/Marine_Notice_14_04.asp. Emphasis added.
[115]Vietnam uses island basepoints including Tho Chu Archipelago, Con Dao group and the Phu Qay group (Catwick Island group) which are all at least 50 nm from the mainland and neighbouring island groups.
[116]People’s Republic of China. See for discussion Rothwell, 1994-95, loc. cit.
[117]See generally Commonwealth v State of Tasmania ([1983] HCA 21; 1983), 158 CLR 1.
[118]See discussion above.
[119]See discussion above.
[120]See discussion above.
[121]A former State government once proposed this and is partly responsible for the enactment of the Great Barrier Reef Marine Park Act 1975 (Cth).
[122]See Richardson v Forestry Commission [1988] HCA 10; (1988), 164 CLR 261; Commonwealth v State of Tasmania [1983] HCA 21; (1983) 158 CLR 1.
[123]S. 51(xxix); See also Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261; Commonwealth v State of Tasmania [1983] HCA 21; (1983) 158 CLR 1.
[124]The Inner Route is clearly depicted in Figure 2.
[125]See discussion above.
[126]UNCLOS, 17, 18.
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