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Commonwealth off-shore constitutional responsibilties and the Great Barrier Reef

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The Council, was: presided the Chief Judge of the Family Court of Australia, Justice Elizabeth Evatt. ,

Canberra 22 June 1979


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An outline of the Commonwealth's position by the Attorney-General, Senator Peter Durack, Q.C.

With the agreement reached between the

Commonwealth and Queensland last week, the issue of the control and management of the Great Barrier Reef which has clouded the whole topic of present and proposed off-shore constitutional arrangements has now been resolved.

The Commonwealth and Queensland will now have a joint consultative mechanism for the management· and preservation of the Great Barrier Reef Region, which extends right into low water mark along the Queensland . coast and

around Queensland islands in . the area.

■ It is important that the constitutional basis for

these arrangements should be properly understood.

There is a practical need for the Commonwealth and

a State, when they are each concerned with a matter, to

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channel that concern into the paths of co-operation rather

than of confrontation. However, it is a fundamental rule of our Constitution that, where Commonwealth power extends to a matter that is also of interest to the States, the

Commonwealth has the ultimate power.

The Commonwealth Government's position on the need to protect the Barrier Reef is clear. On 4 June the Prime Minister announced a number of decisions, including the preparation of a research programme. Those decisions give an unequivocal commitment not to permit any drilling or mining

anywhere that could possibly damage the Reef.

The Commonwealch' s . decisions announced on . 4, June adopt the stricter restrictions on drilling proposed by Sir Gordon Wallace, the Chairman of the Royal Commissions into petroleum drilling in the area of the Reef. That inquiry was

jointly initiated by the Commonwealth and Queensland and reported in November 1974. ,

The Commonwealth's interest in preserving the Reef was confirmed in 1975 when the Parliament passed the Great Barrier Reef Marine Park Act with the support of all

parties. The national Parliament took the view that the Reef did not simply belong to one State but to the people of Australia who had an obligation to see that it was preserved for the future generations of all nations.

In the complex negotiations between the

Commonwealth and the States to find solutions of the vexed questions of offshore jurisdiction, the Great Barrier Reef Region presented an obviously difficult problem. Both the Commonwealth and Queensland Governments recognised this, and

the need to make special arrangements. The consultations

with Queensland culminated in the agreement reached between the Prime Minister and Mr Bjelke-Petersen at Emerald last week.

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Commonwealth Act Unchanged

. Those arrangements involve acceptance that the

Great Barrier Reef Marine Park Act will continue unchanged. The Great Barrier Reef Region as defined by it will continue unchanged, as will the Great Barrier Reef Marine Park

Authority established by it.

The Great Barrier Reef Marine Park Authority is designed to provide for the progressive declarations and oversight of Marine Parks in the Region of the Great Barrier Reef. The ' Authority is concerned therefore not only with

specific areas that have been actually declared to be part of the Marine Park. In addition the Authority has a

statutory responsibility, in effect, to oversee the

well-being of the whole Reef. '


· The Commonwealth Act gives recognition to the

practical necessity for co-operation with the Queensland

Government. One of the members of the Authority is to be nominated by the Queensland Government. The other two are Commonwealth nominees. The Act specifically states that the Authority can perform any of its functions in co-operation with Queensland, and also provides that the Commonwealth

Government may make arrangements with the Queensland Government for the performance of functions by Queensland officers.

The joint arrangements the Prime Minister has now secured with Queensland, under which day-to-day management will be by Queensland officials, will utilize these

provisions of the Act. '

' These .provisions are now' to be reinforced by a consultative Ministerial Council comprising Commonwealth and

State Ministers representing marine parks, conservation,

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science and tourism. The first section of the Great Barrier Reef Marine Park recommended by the Authority - the Capricornia Section - is· to be processed by the Ministerial Council as an. immediate task to enable early, proclamation to

take place. The ultimate power to declare areas to be part of the Marine Park is with, and will remain with, the Commonwealth.

In the debates in the Senate four years ago on the Great Barrier Reef Marine Park Act, I said: 'It is perfectly obvious that it is not a practical proposition for the Commonwealth Government or an authority of that Government

to exercise powers within an area of this kind without having to co-operate at almost every point with the

Government of the State which is adjacent to the area and which controls a large number of islands which are within the area.'

The joint arrangements with Queensland can only enhance the development and protection of the Great Barrier Reef. .

Constitutional Questions . '

In federations such as ours, there are difficult and intricate problems in matters of off-shore jurisdiction. After a decade of Commonwealth-State disputes on the matter involving major litigation in the. High Court, the point needs little elaboration. ,

Australia's experience in this is by no means unique. Similar questions arose in the United States and subsequently in Canada. In their cases, as in the case of

Australia, the rule of the highest constitutional tribunal was in favour of the central government. In their cases, as

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in our own case, it was found that the constitutional ruling

was not the end of the matter. ■

Thus the High Court's, decision in the Seas and

Submerged Lands Case in late 1975 in the event confirmed full jurisdiction on the part of the Commonwealth Parliament right up to low water mark. However the decision also threw doubts on the adequacy of existing State extra-territorial powers in the territorial sea on a number of topics which

history, commonsense and the sheer practicalities of the matter mark out for State administration rather than Commonwealth administration, in the absence of overriding

national or international considerations. ·

, Port facilities are ■ one example. The enforcement of the general criminal law · in the territorial sea is another. The Commonwealth Crimes at Sea Act, which will come into operation in the near future, recognises that generally •it is for the States to deal with crimes in the territorial


Agreement in principle was reached at the

Premiers' Conference in 1977 with all States that the territorial sea should therefore be the responsibility of the. States. The Conference stipulated that this was not to

affect the Commonwealth's international responsibilities and marine parks were not dealt with. Implementation of the 1977 Agreement was considered at the 1978 Premiers' Conference which agreed to . an extension of State powers to the

territorial sea, supported by appropriate amendments of the Seas and Submerged Lands Act and the vesting of appropriate

rights in the" States in respect of · the seabed in the territorial sea.

Commonwealth Responsibility

It would be a mistake however to see the proposed implementation of these arrangements as representing an

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abdication by the Commonwealth Government of its own national and international responsibilities in relation to the territorial sea. Thus, the arrangements agreed with Queensland recognise that the implementation of the 1978 Premiers' Conference with respect to the territorial sea will be subject to the Great Barrier Reef Marine Park Act

and the decisions on the Reef announced by the Prime Minister on 4 June'.

There may be some who would prefer an abdication by the Commonwealth of these responsibilities. However that is no part of our proposals. I repeat what I have said in

the Senate: . .

1 The discussions with the State are on the basis of the exercise by this Parliament - not anybody else - of its constitutional power. We are not talking about giving away the ultimate

constitutional power of this Parliament.* 1

Canberra 23 June 1979 40/79

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An Address by the Attorney-General, Senator Peter Durack, Q.C., To The Australasian Communications Law Association

I am happy to be here with you to discuss aspects

involving both the law and the media. · . .

I have chosen the topic, "Which Way Now for

Lawyers and The Media" because I would like to raise with