EXPLANATORY STATEMENT
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
Seas and Submerged Lands Act 1973
Seas and Submerged Lands (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2005
Section 12 of the Seas and Submerged Lands Act 1973 (the Act) provides that the Governor‑General may, from time to time, by Proclamation, declare, not inconsistently with Article 76 of the United Nations Convention on the Law of the Sea (Law of the Sea Convention) or any relevant international agreement to which Australia is a party, the limits of the whole or any part of the continental shelf of Australia.
The Proclamation revokes the Seas and Submerged Lands (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2004 of 16 December 2004 and declares the outer limits of Australia’s continental shelf consistent with boundaries agreed between Australia and New Zealand.
The continental shelf of a coastal State comprises the submerged prolongation of the land territory of the coastal State - the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles where the outer edge of the continental margin does not extend up to that distance. The continental shelf of a coastal State may extend beyond 200 nautical miles where certain criteria in the Law of the Sea Convention are satisfied. A coastal State has sovereign rights for the purpose of exploring and exploiting the resources of its continental shelf.
The Australian Minister for Foreign Affairs and his New Zealand counterpart signed the Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (the Treaty) on 25 July 2004. The Governor-General in Council approved signature of the Treaty on 21 July 2004.
The Seas and Submerged Land (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2004 was made on 16 December 2004. That Proclamation was intended to declare the outer limits of Australia’s continental shelf as it relates to New Zealand, consistent with the Treaty.
The Australian signature text of the Treaty contained five erroneous coordinates in relation to that part of the continental shelf generated by Macquarie Island. These errors also occur in the Proclamation of 16 December 2004. The errors in the Treaty have been rectified by an Exchange of Notes. The Proclamation is required to ensure Australian law reflects the Treaty as rectified.
The Proclamation will commence on the day on which the Treaty enters into force. The Treaty will enter into force when Australia and New Zealand advise each other that their respective requirements for entry into force have been finalised. From Australia’s perspective, the making of Proclamations declaring the outer limits of Australia’s exclusive economic zone and continental shelf in relation to New Zealand is the only action of a legislative nature required before the Treaty can enter into force.
The Proclamation is consistent with Article 76 of the Law of the Sea Convention (which defines the Continental Shelf).
No public consultation was undertaken in relation to the Proclamation, as it merely makes minor changes to a previous Proclamation.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Seas and Submerged Lands (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2005 was enacted to address inaccuracies in the maritime boundaries previously declared in the Seas and Submerged Lands (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2004. This legislation was introduced by the Australian government, specifically through the authority of the Governor-General, in accordance with Section 12 of the Seas and Submerged Lands Act 1973. The primary policy objective was to ensure that Australia's legal framework aligns with the corrected maritime boundaries as agreed upon with New Zealand in the Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries. This alignment is crucial for maintaining the integrity of Australia's sovereign rights over its continental shelf, including the exploration and exploitation of its resources, in accordance with international law, particularly the United Nations Convention on the Law of the Sea.
Scope and Application
The Seas and Submerged Lands (Limits of Continental Shelf in the Tasman Sea and South Pacific Ocean) Proclamation 2005 applies to the outer limits of Australia's continental shelf in relation to New Zealand, ensuring that Australian law reflects the Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries. The Proclamation revokes the previous Proclamation of 2004 to correct erroneous coordinates in relation to Macquarie Island, ensuring alignment with the rectified Treaty. This legislative instrument is enacted under Section 12 of the Seas and Submerged Lands Act 1973 and is consistent with Article 76 of the United Nations Convention on the Law of the Sea and relevant international agreements to which Australia is a party. The Proclamation is applicable within the geographic jurisdiction of Australian waters, specifically the Tasman Sea and the South Pacific Ocean, as delineated by the Treaty and corrected coordinates. The instrument does not extend to other parts of Australia’s continental shelf unless specified by subsequent legislative measures. The Proclamation is a legislative instrument under the Legislative Instruments Act 2003, indicating that its authority is derived from the Act and relevant international treaties.
Key Provisions
Section 12 of the Seas and Submerged Lands Act 1973 (the Act) allows the Governor-General to declare, through a Proclamation, the limits of Australia’s continental shelf, provided it is consistent with the United Nations Convention on the Law of the Sea (Law of the Sea Convention) and any relevant international agreements to which Australia is a party (Section 12). The most recent Proclamation, made in 2005, revokes a previous Proclamation from 2004 and sets the outer limits of Australia’s continental shelf in alignment with the boundaries agreed upon with New Zealand. The continental shelf is defined as the submerged extension of a coastal state's land territory, encompassing the seabed and subsoil of submarine areas beyond the territorial sea up to the outer edge of the continental margin, or to a distance of 200 nautical miles if the continental margin does not extend that far. A coastal State has sovereign rights over its continental shelf for the purpose of exploring and exploiting its resources.
The Proclamation imposes specific obligations on relevant parties to adhere to the continental shelf boundaries as declared. This includes compliance with the corrected coordinates as per the Treaty between Australia and New Zealand, which was signed on 25 July 2004 and approved for signature by the Australian Minister for Foreign Affairs on 21 July 2004. The Proclamation ensures that Australian law reflects the corrected Treaty, which was necessitated by five erroneous coordinates related to Macquarie Island that were present in both the Treaty and the 2004 Proclamation. The Proclamation aims to establish legal certainty and alignment with international obligations by correcting these errors.
Breach of the obligations outlined in the Proclamation could lead to various legal consequences. While the Proclamation itself does not detail specific penalties, violations of the continental shelf boundaries could result in legal actions under both domestic and international law. These actions might include disputes before the International Tribunal for the Law of the Sea or other relevant international bodies. Additionally, the failure to comply with the Act or the Proclamation could lead to civil or administrative penalties under Australian law, depending on the nature and severity of the breach. The exact consequences would depend on the specific circumstances and the applicable legal frameworks.