Research Paper 6 1998-99

International Year of the Oceans-1998
Australia's policies, programs and legislation

Dr Frances B Michaelis
Science, Technology, Environment and Resources Group
8 December 1998

List of Tables
Table 1: Australia's Oceans Policy Development-a chronology

List of Figures
Fig. 1. Australia's marine jurisdictional zone
Fig. 2. The extent of the Continental Shelf and other marine zones
Fig. 3. Map of Australia to show areas managed by Parks Australia
Fig. 4. Map of Australia to show petroleum activity
Fig. 5. Map of Australia to show Commonwealth managed fisheries

Acronyms and abbreviations

Major Issues Summary

It is appropriate at the end of 1998, the International Year of the Oceans, to review Australia's progress towards better management of its oceans. The paper concludes that the International Year of the Oceans has increased awareness of some of the oceans management concerns facing Australia and has encouraged the development of an Oceans Policy. However, the opportunity has been lost in 1998 for rigorous discussion of many of the issues that will shape the future management of our oceans.

Australia's marine and coastal areas are the focus of much of its economic, social and recreational activity. Australia is a world leader in using marine reserves for marine conservation and management. Marine industries contributed an estimated $30 billion to national exports in 1998 and represent one of the fastest growing sectors of the economy as well as a major area for new industry and job creation. Pressures for surveillance and enforcement operations to protect Australia's national interest in the maritime jurisdictional area and adjacent high seas are likely to increase. 1998 is yet another year in which the resources of the oceans and ocean administrators were seen to be finite. For this reason, Australia needs a coordinated policy and legal framework on which to base oceans management decisions.

The Commonwealth has limited Constitutional powers in the marine and coastal area and thus responsibility falls to all three levels of Government. A major constraint on Commonwealth policy and program development is the Commonwealth-State division inevitable in a Federal system. A further constraint is the sectoral nature of the Commonwealth bureaucracy. A final and major constraint is the lack of adequate resources and commitment on the part of Government to an inherently difficult area of national and international endeavour. Oceans require long-term and resource intensive scientific research and management.

In 1994, the United Nations Convention on the Law of the Sea (UNCLOS) came into force and imposed an international obligation on Australia to manage the marine and coastal environment within the 200 nautical mile exclusive economic zone (EEZ). Australia has the third largest such zone in the world. Australia has also accepted responsibility for a search and rescue area that is equivalent to one-ninth of the earth's surface. Management concerns within the Australian EEZ include illegal fishing, pollution and an increasing number of offshore oil and gas installations.

In 1995, the Commonwealth Coastal Policy was released and a multi-party involvement in the development of an Oceans Policy for Australia began. Any oceans policy development will now include the concept of ecologically sustainable development (ESD). In May 1998, Australia's Oceans Policy-an Issues Paper was released for public comment. There are several concerns about its scope and priorities, including the lack of prominence given to indigenous and community issues. It is anticipated that the final Oceans Policy will be released before the end of 1998.

The Marine Science and Technology Plan-Draft for Consultation is a companion document to the Issues Paper. The Draft Plan, released in June 1998, addresses existing and emerging priorities for marine science, technology and engineering. The date for final release of the Plan is uncertain.

There are various existing Commonwealth marine and coastal programs including at least 15 relevant strategies, funding to marine science institutions as well as to Commonwealth Government departments, additional funding under the Natural Heritage Trust (NHT), development of a National Representative System of Marine Protected Areas, environmental reporting, and education.

Implementation of an Oceans Policy would proceed through administration, education, legislation (including UNCLOS) and funding. Carriage of issues of ocean policy development and management has straddled different Commonwealth departments over time and this has contributed to duplications and omissions. The critical issue of central co-ordination of both marine and coastal matters through a Ministerial Council, an Authority or an advisory body has not yet been adequately addressed.

There are three possible approaches to implementing Australia's Oceans Policy through legislation: dedicated coasts and oceans legislation, further developing the one treaty-one law approach or reforming existing legislation. The Government appears to have chosen the latter, in part, and various shortcomings in draft legislation currently before the Senate can be identified. UNCLOS may be further implemented in Australia in the areas of land-based marine pollution, National Environment Protection Measures and regional marine science and technology centres. Various Australian security, surveillance and enforcement issues are relevant such as the existing defence exemption from some environmental laws.

Australia's progress in oceans policy may be compared with that of other countries. While Australia is considered among the world leaders in marine science and management and will shortly become one of the first countries in the world to develop an oceans policy. However, there is no room for complacency. Comparisons with Canada, the United States, Europe and Australia's five oceanic neighbours-New Zealand, Papua New Guinea, the Solomon Islands, Indonesia and France (both New Caledonia and the Kerguelen Islands in the sub-Antarctic)-suggest there is much to be learnt from other countries about the fundamental role of marine science and technology and options for policy implementation. Australia's role in the Antarctic should also be considered.

When the Australian Oceans Policy is finalised, one hopes it will include a statement of national vision, associated goals and strategies. The Policy will be judged on its capacity to:

• define a framework of ecologically sustainable development (ESD), incorporating the precautionary principle and managing uncertainty
• recognise the important role of marine science and technology
• conserve the marine environment particularly with regard to usage by traditional communities
• adopt a cross-sectoral approach to offshore mining and petroleum, fisheries, shipping, tourism and other marine industries
• protect Australia's defence and security interests
• encompass Antarctica, the sub-Antarctic islands and the Indian Ocean territories, and

• guarantee Australia's leadership in marine and coastal management within the Asia-Pacific Region.

The end of 1998, the International Year of the Oceans, should not be the end of managing Australia's oceans but the beginning of a more coherent national strategy. It can be argued that implementation of marine and coastal policies should be continued with a financial commitment to scientific and technological research and development, and appropriate legislation be developed, along with programs with a long-term focus as an ongoing part of Australia's commitment to the optimum management of Australia's oceans. The critical issue of central coordination of both marine and coastal matters through a Ministerial Council, an Authority or an advisory body has not yet been addressed. The danger is that the existence of an Oceans Policy will be a substitute for active management, legislation and funding. The main aim is surely to avoid irreparable damage to the three oceans and three tropical seas for which Australia is responsible.

Introduction

The waters surrounding Australia and its external territories are part of three large, interconnected ocean basins of the Southern Hemisphere-the Pacific, Indian and Southern Oceans together with the tropical Timor, Arafura and Coral Seas. Descriptions of physical and chemical oceanography, coastal habitats and marine biodiversity are beyond the scope of this Paper but the importance of the oceans to Australia must be emphasised. In the south, 80-90 per cent of marine species are endemic, that is they are not found elsewhere. Marine industries contributed an estimated $30 billion to national exports in 1998.(2) Ocean pollution remains the 'number two' environment concern of Australians, after air pollution.(3) Australia's marine jurisdictional zones are shown in Fig. 1.

Fig. 1. Australia's marine jurisdictional zones (Australian Geological Survey Organisation)

The extent of the Continental Shelf and other marine zones contained within the 1982 United Nations Convention on the Law of the Sea (UNCLOS) are shown in Fig. 2.

Fig. 2. The extent of the Continental Shelf and other marine zones contained within the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (Source: AGSO).

The declaration, in 1994, of Australia's EEZ to extend 200 nautical miles (nm) offshore, the third largest such zone in the world, drew attention to Australia's obligation to manage the marine and coastal environment within the EEZ. This was the year in which UNCLOS came into force and imposed an international obligation on Australia. The Convention offers several advantages to Australia: it gives legitimacy to its extensive claims to the EEZ, offers security to the sea transport of its exports and provides new opportunities. This new role also requires Australia to frame a national policy for the management and control of marine resources.

It is appropriate at the end of 1998, the International Year of the Oceans declared by the United Nations Educational Scientific and Cultural Organisation (UNESCO), to review Australia's progress towards accepting the oceans and seas as an integral part of Australia and not just as a zone suitable for careless exploitation of living resources, dumping of wastes and inconsiderate marine and coastal planning. A review of the legislative and administrative framework needed for effective management of the EEZ is also required. Australia has not yet produced and implemented an Oceans Policy. Implementation of marine and coastal policies by the Commonwealth Government will be judged on an appropriate financial commitment to scientific and technological research and development; on legislative progress to manage this area; on the development of programs with a long-term focus; and on education.

1998 is yet another year in which the resources of the ocean were seen as finite. The resources of ocean administrators are also finite, emphasising the need to set priorities. Yet the extent of Australia's responsibilities are illustrated, e. g., by the fact that it was called on to rescue the round-the-world balloonist Steve Fossett from the Coral Sea (17 August 1998) and to apprehend trawlers engaged in illegal fishing for Patagonian toothfish within the vast Australian EEZ stretching towards Antarctica (22 July 1998).

Oceans are a global environmental concern, like greenhouse gases, and this has reinforced the role of international oceanic agreements. Much needs to be done to implement the international conventions, such as UNCLOS, to which Australia is party. There is movement of pollution offshore, oil spills, migratory fish and deep-sea bed minerals may cross or be found on international boundaries. Many of Australia's tropical marine plant and animal species are Indo-Pacific regional or are world-wide in their distribution. An international approach is needed, with Australia-it is to be hoped-a leader in the Asia-Pacific Region.

This Research Paper sets out to review Australia's existing marine and coastal policies and provide international comparisons, discuss the Oceans Policy Issues Paper released by the Government in 1998 and consider the implementation of an Oceans Policy in Australia through legislation, administration and funding. This Paper will touch on major points in the development of policies and outline the basic issues.

Policy Framework

Development of an Oceans Policy must be within a policy framework that contains three sets of potentially competing pressures:

• Commonwealth Government-State Government relations
• Commonwealth Government inter-departmental divisions, and
• allocation of Government resources.

Constraints on policy and program development

The Commonwealth has limited Constitutional powers in the marine and coastal area and thus responsibility falls to all three levels of Government. A major constraint on Commonwealth policy and program development is the Commonwealth-State division inevitable in a Federal system. The majority of State and Territory governments are pursuing initiatives to improve the management of the marine and coastal zones within their jurisdictions. However, legal and management standards vary between States. Local government, with its planning and development responsibilities, is also addressing marine and coastal management issues. Day-to-day decisions often need to be taken far from Canberra or an Australian home port. Recently, an attempt was made by the Council of Australian Governments (COAG) to reform Commonwealth-State-local government environment policy and law by defining Commonwealth roles and responsibilities. This process appears to have been independent of the oceans policy development process and has not yet been integrated with it.

A further constraint is the sectoral nature of the Commonwealth bureaucracy. Carriage of issues of ocean policy development and management has straddled different Commonwealth departments over time and this has contributed to duplications and omissions. Because of competing Departmental interests, time was lost over the decision as to which part of the bureaucracy would be responsible for oceans policy; it has moved from the Environment portfolio to the Department of Prime Minister and Cabinet and back again. The early stages of the development of the policy by Environment Australia overlooked the role of the defence sector, perhaps reflecting the sectoral nature of the bureaucracy, but a broader perspective has now been restored.(5) For historical and bureaucratic reasons, the marine science and technology sector (within the Department of Industry, Science and Resources) has been separated out within the marine and coastal policy process. The new Department of Agriculture, Fisheries and Forestry is also a key player. A list of some of the Commonwealth Government institutions involved in this policy process is at Appendix 1.

A final and major constraint is the lack of adequate resources and commitment on the part of Government to an inherently difficult area of national and international endeavour. Oceans require long-term and resource intensive scientific research and management.

Resolution of these long-standing dilemmas is a challenge to be faced in policy development and implementation, and concepts such as the Offshore Constitutional Settlement which defines Commonwealth-State responsibilities (Fig. 2), institutional arrangements to ensure cross-sectoral departmental co-ordination, and ecologically sustainable development may assist to resolve the likely conflicts.

Ecologically sustainable development

Sustainable development was placed on the global agenda through the 1987 report of the World Commission on Environment and Development entitled 'Our Common Future' (often known as the Brundtland Report). Sustainable development was defined as:

The concept of ESD has been embraced by many Australians as a unifying goal for conservation and development and as a means of managing increasing human demands on the limited capacity of the natural environment. These principles of ESD were spelt out fully in the National Strategy (below, Strategies) and have been incorporated in legislation. One objective of the Fisheries Management Act 1991 (Cwlth) was to ensure that the exploitation of fisheries resources is consistent with the principles of ESD and the exercise of the precautionary principle which is defined thus:

The 'precautionary principle' was adopted in 1992 by the Intergovernmental Agreement on the Environment (IGAE) between the Commonwealth and the States as a cornerstone of Australian environmental policy and has gained acceptance as a governance tool. However, the question of who bears the burden of proof has not been resolved. It has been said that those opposing development activities only have to claim the possibility of environmental or social impact, whereas proponents of those developments have to prove that there is no possibility of impact.

'Managing for uncertainty' has been incorporated into the policy framework, requiring that management regimes be adaptive both in terms of allowing for changes that may alter risk assessments and being capable of rapid responses to assessments of adverse impacts.(7) As Dr Nan Bray, recently appointed Chief of CSIRO Marine Research, explained:

It is important that these risks are managed in an appropriate scientific way to minimise damage and create sufficient opportunities for future generations.

Recent history of Australia's Oceans Policy development

Environment statements of former Prime Ministers, the Hon Bob Hawke MP in 1989 and the Hon Paul Keating MP in 1992 announced Australia's policy relating to the oceans. The 1989 statement, under the heading Oceans and Fisheries, restated the policy of total protection of whales, dolphins and porpoises, and considered conservation of Southern Bluefin Tuna and other fisheries management issues, such as driftnetting.

In 1989, the McKinnon report, Oceans of Wealth?, evaluated Australia's marine science and technology research activities, assessed commercial opportunities and identified actions which could enhance the performance of these industries.(9) A series of detailed recommendations covered the establishment of an Australian Marine Industries and Sciences Council (AMISC), its initial work program, specific actions to be undertaken by AMISC and its funding. AMISC was established in April 1994.

Another major initiative, started in 1991, was Ocean Rescue 2000, a ten year program aimed at the conservation and sustainable use of the marine environment.(10) The program had the following elements:

• National Representative System of Marine Protected Areas (on-going)

• Australian Marine Conservation Plan (not pursued)

Table 1: Australia's Oceans Policy development-a chronology

• State of the Marine Environment Report (successfully completed 1995)

• Marine and Coastal Community Network (on-going)

• National Marine Education Program (on-going but renamed Capacity Building), and

• National Marine Information System (continuing).

The 1992 Prime Ministerial statement, under the heading Marine and Coastal Protection, continued the Ocean Rescue 2000 program, describing it as 'the first national inter-governmental program of its kind in the world', formally established the Marine and Coastal Community Network, provided further funding for the Great Barrier Reef and supported the establishment of a Southern Ocean whale sanctuary.

The International Union for the Conservation of Nature and Natural Resources-the World Conservation Union (IUCN) proposed guidelines in 1991 for establishing marine protected areas.(11) These have subsequently been widely adopted and used in the development of a worthwhile discussion paper by the Australian Committee of the IUCN about a conservation strategy for the Australian marine environment.(12)

Almost 60 government reports and inquiries on Australia's coastal zone have been undertaken since 1960, reflecting the continuing concern about coastal management. Preparation of the Commonwealth Coastal Policy effectively began in 1991 when the Commonwealth government requested the Resource Assessment Commission (RAC) to conduct an inquiry into the management of the coastal zone. The major recommendation of RAC's 1993 report was that a National Coastal Action Program for the management of the resources of Australia's coastal zone be adopted by the Council of Australian Governments (COAG).(13) This program was not adopted in the Commonwealth Coastal Policy (below, Commonwealth Coastal Policy).

In 1995, the State of the Marine Environment Report (SOMER) reported on the then current situation and concluded that the state of Australia's marine environment was 'generally good but...'. Major findings were:

• declining marine and coastal water quality
• loss of marine and coastal habitat
• unsustainable use of marine and coastal resources
• lack of marine science policy and long-term research and monitoring of Australia's marine environment, and
• lack of strategic, integrated planning in the marine and coastal environments.

The SOMER also noted that 'Australia does not have a clear direction or agreed national strategy for managing its coastal or marine environments'.(14) Since the publication of SOMER, a number of initiatives such as the Commonwealth Coastal Policy, the Coasts and Clean Seas program and the Marine Industry Development Strategy have attempted to improve this situation.

Later in 1995, the Commonwealth Coastal Policy, a response to RAC's 1993 report, was released, and commenced as follows:

The Commonwealth Coastal Policy, at p.41, promoted the development of an Australian Marine Conservation Plan, rather than a marine policy, and advised, at p. 67, a major evaluation of the Coastal Policy after three years. Neither of these has happened.

Mention should be made of the instrumental role that the Royal Australian Navy played in developing and promoting the concept of an Oceans Policy in a series of high-level workshops, long before political parties adopted the policy direction.(16)

On 26 June 1995, the Senate adopted terms of reference for an inquiry into marine and coastal pollution to be undertaken by the Senate Environment, Recreation, Communications and the Arts (ERC&A) References Committee, under the Chair, Senator John Coulter of the Australian Democrats, which included consideration of an 'oceans management policy'. The Senate Committee reported in October 1997 that 'the need for a national oceans policy has been widely accepted'. The Committee did not consider what the term 'oceans policy' meant or how it would differ from the existing Commonwealth Coastal Policy and did not elaborate on the scientific research needed to implement an oceans policy, as required under their terms of reference, but did make some general comments and recommendations on specific issues (discussed below, Marine Science and Technology Plan).(17)

In December 1995, a detailed report from the Prime Minister's Science and Engineering Council on managing science and technology for Australia's ocean territory was tabled, confirming the interest in oceans management by the scientific community.(18) The then Prime Minister, the Hon Paul Keating MP, announced plans for the development of an oceans policy, to be co-ordinated by the Department of Prime Minister and Cabinet:

The Australian Democrats supported an oceans management policy. A similar policy was adopted by the Liberal-National Party Coalition in January 1996 under the Coasts and Clean Seas initiative when calling for a 'comprehensive and integrated Oceans Policy'. Coasts and Clean Seas also included a 'cooperative national coastal management strategy' (which has not been completed), funding for ocean outfalls, storm water pollution and ballast water research.(20)

The Marine Industry Development Strategy 1997, was developed by AMISC to advise the government on how to 'maximise sustainable wealth generation from marine industries'. It noted that Australia's marine industry growth performance would not be possible without a strong skill base and excellent marine research capability. The Strategy also identified prospects for a number of individual industry sectors (aquaculture, emerging industries, fisheries, offshore oil and gas, shipbuilding, shipping transport services and tourism and recreation) and key issues such as regulation and management of marine industries, managing for outcomes, multiple use, the need for basic data and research and training.

Recommendations from the Strategy related to government marine policy and decision-making, ecologically sustainable development (and consistent legislation), and collection and maintenance of basic data. The Strategy considered that the recommendations should be taken up in developing an Oceans Policy and the Marine Science and Technology Plan. In February 1998, the terms of appointment of the members of AMISC effectively expired and were not renewed. Its functions were not transferred elsewhere.

A year after the change of government, the Prime Minister, the Hon John Howard MP, announced on 3 March 1997 plans for the development of a Commonwealth Government Oceans Policy. He said that the government would work with State and local governments to develop an integrated oceans policy ranging across all jurisdictions, which would balance the needs of the environment with the needs of resource security and jobs.(21)

A decision was made by the Council of Australian Governments in November 1997 to list 30 matters of national environmental significance, including seven matters contained in Part I, of which 'management and protection of the marine and coastal environment' is one.

The list of seven matters in Part I and 23 matters in Part II of the COAG Agreement, including at least 21 of the 30 items that are relevant to the marine and coastal environment, is a mixture of biological organisms, processes, localities, chemicals, administrative procedures and others. There are omissions and duplications and there does not appear to be any attempt to group or prioritise these environmental matters. A better approach might have been to list matters arising from responsibilities under the Australian Constitution, matters arising from Australia's obligations under international agreements, matters arising from national legislative responsibilities and others.

Under the COAG Agreement, 'management and protection of the marine and coastal environment' is defined thus:

'Management and protection of the marine and coastal environment' as a role and responsibility might be considered a misnomer, given the limited scope of Commonwealth responsibilities subsequently defined.

Although the marine and coastal environment requires management and protection by the Commonwealth (and includes Commonwealth waters from 3 nm to 200 nm offshore), it is difficult to understand why it has been singled out when the atmospheric environment or the land and inland water environment were not included in Part I of the COAG Agreement. This special listing of marine and coastal matters in Part I has resulted in an arbitrary prominence as a separate part of the proposed national legislative reform (below, The reform of existing legislation).

Towards an Australian Oceans Policy

In the development of an Oceans Policy, no mention was made in the Issues Paper of the existing Commonwealth Coastal Policy and its status needs to be clarified, as there is potential for confusion. For historical and bureaucratic reasons, the marine science and technology sector has been separated out within the marine and coastal policy process and, during 1998, there has been parallel development of an Oceans Policy and a Marine Science and Technology Plan. According to some, a scientifically robust national oceans policy is the most likely way to ensure that conservation objectives are well defined, appropriately evaluated and successfully achieved.(23)

Australia's Oceans Policy-an Issues Paper

Australia's Oceans Policy-an Issues Paper. Caring-Using-Understanding was released for public comment by Senator the Hon Warwick Parer, the then Minister for Resources and Energy, on 19 May 1998.(24) A series of Background Papers and Issues Papers supported the Issues Paper. In preparing the Issues Paper, there was discussion between the Commonwealth, States and local government and an opportunity for public input. A background briefing described the need for an oceans policy, consultative actions to achieve the policy outcome (including an Oceans Policy Forum held in Canberra in December 1997) and recent government actions to protect temperate waters.(25) When a public consultation period ended on 15 July 1998, 502 submissions and questionnaires had been received. Most of these comments have not been made public and it is not known to what extent they will be incorporated into the final document. It is anticipated that the final Policy will be released by the Government before the end of 1998.

The sub-title of the Issues Paper is Caring-Using-Understanding. It could be argued that this phrase should be re-arranged to Understanding-Caring-Using to give the concept of scientific understanding its due prominence as a first step, prior to utilisation. The Independent World Commission on the Oceans, of which Dr Peter Bridgewater of Australia is a member, considers that:

Some have questioned why Conserving was not included in the sub-title but it may be that the Issues Paper intended the word Caring to include both stewardship and conservation.

The Issues Paper begins:

These goals are unexceptional and similar to those pursued in the Commonwealth Coastal Policy 1995 and to those being pursued in other countries (below, Oceans policy-International comparisons). It is difficult to comment on the final policy direction but concerns about the Issues Paper may be summarised as follows.

Scope

The Oceans Policy needs to begin with a consideration of the difference between the coast and the oceans. It needs to indicate whether this is a policy genuinely distinct in scope from the Commonwealth Coastal Policy, and complementary to it, or just an update of the 1995 policy in a different political context. The terms 'coasts' and 'oceans' do not appear to be defined in the Glossary of the Issues Paper and their meaning in a policy context remains unclear. The Commonwealth Coastal Policy did not properly define the coastal zone. It considered that:

The cover of the Issues Paper and the homepage of the Web site show waves breaking on a sandy beach, rather reminiscent of the cover of the Commonwealth Coastal Policy, and suggest a definition of oceans as the coastal margin rather than the bluewater. This is the 'inward vision' which concerned Sir Ninian Stephen in his quote at the beginning of this Paper.

Priorities

It would appear that the goals of the Oceans policy are not in priority order. It might have been better to use the concepts of ecologically sustainable development, the precautionary principle and managing for uncertainty as an over-arching framework rather than just giving them a mention in goals 2 and 3. The order of the goals bears little relation to the order of the subsequent chapters in the Issues Paper, which is:

• background to Australia's Oceans Policy
• principles for ecologically sustainable ocean use
• integrated oceans planning and management
• marine industry, science and technology, and
• principal actions to develop and implement the Policy including sectoral approaches to ocean uses and impacts, training and development, understanding the oceans, protecting the national interests and performance assessment and reporting.

The goal 'to exercise and protect Australia's rights and jurisdiction over offshore areas ...' has been downplayed in the Issues Paper to an action arising out of the Policy, as 'protecting the national interests' (5.4). The fourth goal 'to accommodate identified and agreed community interests, needs and responsibilities' has been similarly downplayed to Public and community participation (2.1.9 and 5.2.1). The sub-chapter on Understanding the Oceans (5.3), relegated to an action arising from the Policy towards the end of the Issues Paper, could be brought forward so that it precedes planning and management (Chapter 3). It is also an integral part of the Marine Science and Technology Plan (Chapter 4).

Administrative process

The Issues Paper begins its chronological discussion in early 1997 and avoids any reference to the long-term and ongoing involvement by several political parties, industry sectors, scientists and the general community in the development of an Oceans Policy. The distinction between a 'Commonwealth' policy and a 'national' policy is not made. Since the policy has been named 'Australia's Oceans Policy' one would assume it would apply to both State and Commonwealth waters.

An unexpected omission from the Issues Paper was any consideration of legislation as a means of implementing the policy, particularly at a time when major environmental legislative reform is before the Parliament. This matter is considered below at Legislation.

Marine Science and Technology Plan

The Marine Science and Technology Plan-Draft for Consultation is a companion document to Australia's Oceans Policy-an Issues Paper.(28) The Draft Plan, released on 10 June 1998, addresses existing and emerging priorities for marine science, technology and engineering, including those identified in the Oceans Policy Issues Paper. It draws upon 68 submissions received by the then Department of Industry, Science and Tourism from the public in response to the Scoping Paper for the Plan (released in May 1997). The Draft Plan provides, under the framework of the Oceans Policy:

Goals and objectives are defined for each of the three programs as 'understanding the marine environment, utilising the marine environment and infrastructure for understanding, utilising and managing the marine environment'.

A key recommendation of the Marine Industry Development Strategy relating to all levels of government regularly reviewing their policies by consulting and coordinating does not appear to have been picked up in the draft Plan or in the Issues Paper. The draft Marine Science and Technology Plan (MS&T Plan) recommends the establishment of a coordinating Council with specialist and Commonwealth-State representation, to facilitate the Plan's implementation, maintain a focus on national priorities, and report to Government. The Issues Paper notes that the Policy 'will aim to integrate decisions across industry sectors and government jurisdictions'.(29) Mechanisms to achieve this are not specified and there is no consideration of 'regular review'. Other recommendations of the Marine Industry Development Strategy are progressed in the draft MS&T Plan at Program 2: utilising the marine environment (which includes economically as well as ecologically sustainable development); and at Program 3, Objective 4 marine data management.

The Senate ERC&A Committee (above, Senate Committee) recommended that the Marine Science and Technology Plan include: coordination and standardisation of the collection and management of information relating to the marine environment (Recommendation 22) which is addressed by the draft Plan at Program 3 (Objective 4); long-term funding for taxonomic research and museum collections (Recommendation 19) which is addressed in Program 3 Objective 1 and Program 2 Objective 10; and a Commonwealth group of scientists to undertake study of Australia's southern waters (Recommendation 21) which is not considered in the uncompleted Program 3 Introduction but in Appendix 5.

Timing for the release of the final Marine Science and Technology Plan is uncertain.(30)

Commonwealth programs

Strategies

Australian governments in recent years have produced a proliferation of Strategies for implementation of international agreements on the environment, sometimes in the absence of a formal policy or legislative framework. The major strategies are:

• National Strategy for Ecologically Sustainable Development, endorsed by COAG in December 1992,(31)and
• The National Strategy for the Conservation of Australia's Biological Diversity, endorsed by Commonwealth and State Governments in early 1996.(32)

Examples of other strategies relevant to the oceans include:

• An Australian National Strategy for the Conservation of Australian Species and Communities threatened with Extinction, 1992(33)
• National Greenhouse Response Strategy, December 1992(34)
• Towards a Marine Strategy for Torres Strait (MaSTS), 1993(35)
• National Ecotourism Strategy, 1994(36)
• Towards a National Cruise Shipping Strategy, April 1994(37)
• A Waste Management Strategy for Australia's Antarctic operations, May 1994(38)
• Recreational Fishing in Australia. A National Policy, December 1994(39)
• Conservation Strategy for the Australian Antarctic Territory, (not completed)(40)
• Australian Ballast Water Management Strategy, December 1995(41)
• Marine Industry Development Strategy, January 1997(42)
• The National Weeds Strategy, June 1997(43)
• Tourism. A ticket to the 21^st Century, 1998,(44) and
• Marine Strategy for the Torres Strait (MaSTERS), in preparation.(45)

It will be a challenge for an Oceans Policy to draw together the key elements of these strategies and it is inevitable that there will be inconsistencies. The main concern is that these strategies be linked to decision making as one means of implementation (below, Other plans).

Recent funding

Funding for the coasts and oceans has been ongoing in the absence of an Oceans Policy. The Commonwealth government funding includes:

• CSIRO Marine Research at Hobart, Tasmania, Cleveland, Queensland and Marmion, Western Australia for research nationally

• the Australian Institute of Marine Science in Townsville, Queensland

• the Australian Antarctic Division in Hobart. The Division supports research on oceans and marine life, atmosphere, climate change and protection of the Antarctic environment
• the Bureau of Meteorology in Melbourne for oceanographic and hydrological monitoring
• the Australian Geological Survey Organisation
• Environment Australia
• Bureau of Resource Sciences
• the Australian Maritime Safety Authority in Canberra, and
• the Naval Hydrographer within the Royal Australian Navy.

This funding provides for a national network of Commonwealth institutions. The Heads of (Commonwealth) Marine Agencies (HOMA), a voluntary grouping, provides a continuing forum for information exchange on marine matters within the Commonwealth Government. HOMA and the Commonwealth Spatial Data Committee have also established a Marine Data Group, which in turn has created a number of Technical Advisory Groups concerned with specific fields of marine data.

Funding under the Natural Heritage Trust

Additional funding has recently been provided for environmental aspects of the oceans under the Natural Heritage Trust (NHT), which is funded from the proceeds of the partial sale of Telstra Corporation. The Minister for the Environment, Senator the Hon Robert Hill and the then Minister for Primary Industries and Energy, the Hon John Anderson MP issued a joint statement Clean Beaches, Less Pollution, Healthier Oceans on 22 July 1997 which outlined funding under the Coasts and Clean Seas program of $125 million over five years.

This funding has enabled the Oceans Policy to be developed and remedial environmental work to be undertaken. It is important that Government funding be allocated consistent with policy directions. The integration of marine science into the Oceans Policy and into its implementation is fundamental. There have been a number of national concerns about the Coasts and Clean Seas program, for example, certain members of the scientific community consider that some of the funding has gone to projects that could not be defined as 'scientifically robust', and there has been a lack of biodiversity expertise on the Selection Advisory Panels and a lower expenditure than the financial commitment.(46) These issues will no doubt be addressed by the Annual Report of the Natural Heritage Trust 1997-98, due for tabling in December 1998, and the report of the Auditor-General, as required under the Natural Heritage Trust Fund Act 1997.

Commonwealth marine reserves

Australia is a world leader in using marine reserves for marine conservation and management. Many of these reserves are jointly managed between the Commonwealth and the States. The Great Barrier Reef Marine Park, the world's largest coral reef complex and a World Heritage site, is managed by the Commonwealth Great Barrier Reef Marine Park Authority (GBRMPA), with the Queensland Department of Environment and Heritage responsible for day-to-day management. In addition, Ningaloo Marine Park, an extensive fringing reef, was established in 1987 in Commonwealth and State (WA) waters. Solitary Islands Marine Reserve includes Commonwealth and State (NSW) waters in a unique area of tropical-temperate overlap which includes coral communities, mangroves, rock platforms and rocky reefs.

Most marine reserves are on the east coast of Australia and especially along the Queensland coast. Large sections of Australia's marine environment still have few or no marine reserves. In 1991, the Commonwealth government, as part of the Ocean Rescue 2000 program, made a commitment to support State and Territory governments in the development of a National Representative System of Marine Protected Areas. This program has been continued by the present Government in its Coasts and Clean Seas program and will partly fulfil Australia's obligations under the Convention on Biological Diversity 1992, the National Strategy for Ecologically Sustainable Development 1992 and the National Strategy for the Conservation of Australia's Biological Diversity 1996.

To obtain a 'representative' system, it was first necessary to delineate the marine bioregions of Australia for marine conservation planning and for bioregional or ecosystem management. An ecosystem-based classification for marine and coastal environments was developed over several years, culminating in the Interim Marine and Coastal Regionalisation for Australia (IMCRA) of June 1998, which can now be used to assess the representativeness of regions in protected areas. A total of 59 bioregions were identified. The map of the IMCRA is not suitable for reproduction here and the interested reader is referred to http://www.biodiversity.environment.gov.au/protecte/nrs/marine.htm

Each year, the World Wide Fund for Nature (WWF) Australia produces a Protected Areas Report Card that assesses progress towards a comprehensive system of terrestrial protected areas. This year, in recognition of the Year of the Oceans, the report card assessment has changed its focus to marine protected areas. Its overall assessment was:

and for the Commonwealth marine protected areas:

Since the WWF's 1997 assessment, there has been progress by the Commonwealth in increasing representative coverage in areas such as:

Marine areas currently managed by Parks Australia are shown at Fig. 3.

The WWF concern about the 'strong emphasis on reserves allowing resource extraction' remains valid. Nearly all of the marine protected areas in Australia (92.7%) are for multiple-use, with a small number dedicated to sanctuaries and preservation (compare New Zealand). This may have been the result of using the Great Barrier Reef Marine Park as a model for other reserves. It has been argued that 'multiple use' of the oceans is the normal situation and the creation of a marine park should involve additional management constraints. It should be noted that management plans prepared for these reserves do allow zoning to include sensitive areas where there is no resource use. As the Australian Conservation Foundation (ACF) explained:

Fig. 3. Map of Australia to show areas managed by Parks Australia (Source: Department of the Environment, Annual Report, 1996-97)

A Marine Reserves Plan, as part of the implementation phase of the Oceans Policy, might go some way towards addressing the concerns of the ACF.

Marine industries

Commonwealth involvement in the management of offshore mining and petroleum, fisheries, shipping, tourism and other marine industries is ongoing and has been discussed above at Marine Science and Technology Plan with regard to the MS&T Plan. The extent of responsibilities is shown below in Figures 4 and 5.

Fig. 4. Map of Australia to show petroleum activity (Source: Australian Geological Survey Organisation)

Fig. 5. Map of Australia to show Commonwealth managed fisheries (Source: Australian Fisheries Management Authority, Annual Report, 1997-98)

In 1984, Australia's marine resources were worth about $16 billion a year; by 1998 this had increased to about $52 billion and by 2020 will exceed $120 billion a year. Marine resources represent one of the fastest growing sectors of the economy and a major area for new industry and job creation. The precise value of Australia's marine resources is hard to assess as separate statistics are not kept. However, the following 1998 breakdown emphasises the particularly high value of marine tourism.(51)

Sector	Value ($ billion)
Tourism	36
Oil and gas	10
Shipping	2.2
Fisheries and aquaculture	1.8
Ship and boat building	1.5
Other	0.5
Total	52

Environment reporting

The 1995 State of the Marine Environment Report (SOMER), under the Ocean Rescue 2000 program, set a once-off benchmark for Australia's reporting on the coasts and oceans.(52) Australia now undertakes a five-year cycle of Commonwealth reporting on the total environment. The State of the Environment (SOE) Report 1996 reviewed progress towards ecological sustainability. As far as the oceans are concerned, it identified:

The innovative management of complex systems such as the Great Barrier Reef Marine Park was cited as a success. Contributors to a poor record included the structural problems between governments, varying environmental standards between states, inadequate measures to prevent biodiversity loss, lack of integrated, ecosystems approach to management of resources and decision making not linked to national strategies.(53)

The State of the Environment Report is but one aspect of Australia's reporting system on the oceans to various international and regional agencies such as the Scientific Committee of the International Whaling Commission (annual), the Conference of the Contracting Parties to the Convention on Wetlands (as required) and the United Nations Commission on Sustainable Development. Until 1992, there were publicly available reports of members' activities in the convention area presented to the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (annual). Experts from the Organisation for Economic Co-operation and Development (OECD) prepare reports on the environmental activities of their members (periodic). A recent innovation is the State of the Great Barrier Reef World Heritage Area 1998 report.

Education

The Year of the Oceans stimulated a range of educational activities, although they were rather limited. No extra activities were undertaken by the Australian National Maritime Museum or the Australian Antarctic Division. At a time of expanding use of the Internet, a number of Australian and international sites hosted special features for the International Year of the Oceans, which are listed at Appendix 3, as well as other useful Australian marine sites.(54)

In Australia there are annual events such as Sea Week in March, World Maritime Day on 24 September(55) and Ocean Care Day on 6 December. In 1998, there were a number of additional conferences with a regional focus: Year of the Ocean conference focussing on the Tasmanian and Southern Oceans, Hobart, Tasmania, 30 September-3 October; Indian Ocean Conference, Perth, WA; and the International Year of the Ocean Asia-Pacific Conference, Brisbane, Queensland, 26-27 September. These conferences addressed ocean law and policies, oceanography and climatology, living resources of the ocean, and offshore hydrocarbon and mineral resources. A well-attended Symposium series was held in Hobart, Tasmania to address marine issues, hosted by the Royal Society of Tasmania and others. Australia Post even launched a Planet Ocean series of stamps and collectibles, although it did not mention the International Year of the Oceans in its publicity. Clean Up Australia continued its community activities.

What was lacking was a dedicated national event such as the National Ocean Conference held in Monterey, California in the United States on 11-12 June 1998, attended by President Bill Clinton and Vice President Al Gore to demonstrate their administration's commitment to addressing critical ocean issues. This Conference produced some excellent background material.(56) The Council of Europe also held a special conference (below, Parliamentary Conference on the Oceans).

Saltwater country-Indigenous issues

In an Oceans Policy, the role of Aboriginal and Torres Strait Islander communities should be given due emphasis. It could be argued that in the Issues Paper, the 'responsibilities and interests' of indigenous Australians should be an over-arching consideration, endorsed by the policy, instead of a brief section in the Background (Issues Paper 1.5) and again in Principal Actions (5.1.11), in the same way that ESD principles should provide a framework for the policy. The interested reader is referred to the Oceans Policy Issues Papers series No. 6 Saltwater Country: Aboriginal and Torres Strait Islander Interest in Ocean Policy Development and Implementation.

A successful, although little-known, marine management process has been underway in the Torres Strait, between Australia and Papua New Guinea, for a number of years. In 1993, an 'open public process', as described by Getano Lui Jr, Chairman of the Island Coordinating Council (ICC), came to fruition with the preparation of the MaSTS Strategy, which was a pilot project which might offer some solutions to regional marine management problems in other parts of Australia. Its purpose was:

The framework was based on the best available scientific data prepared by CSIRO Marine Research, in their Torres Strait Conservation Planning Project.(58) A Strategy for the Planning of Resource Integration in the Torres Strait (SPRITS) will ensure that decisions on activities in the Torres Strait Protected Zone support the ecologically sustainable use of the region's natural resources (Issues Paper 1.5 but not at 5.1.11). Rather than a formal strategy, this appears to be a Web resource (Internet based) which will provide a directory of related sites.

The draft Marine Strategy for Torres Strait (MaSTERS) was tabled by the ICC at the recent Torres Strait Environment Management Committee meeting but is not yet in the public arena. The development of this strategy, with Environment Australia (EA) funding, was not mentioned in the Issues Paper at section 1.5 or 5.1.11, although it is presumably an integral part of the indigenous component of the Oceans Policy. Integration of these different Torres Strait initiatives is essential for policy implementation.

Implementing an Oceans Policy-the unfinished agenda

The Australian Marine Sciences Association, in a comment on the Issues Paper and the Marine Science and Technology Plan, considered that:

The means of implementing the proposed policy through administration, education, legislation (including UNCLOS) and funding are now considered.

Administration of the Policy

In releasing the Issues Paper for the Oceans Policy (above, Australia's Oceans Policy-an Issues Paper), Senator the Hon Warwick Parer, the then Minister for Resources commented that 't[T]he issues paper recognises the effectiveness of the existing management arrangements for the offshore petroleum and fishing industries. The Oceans Policy will build on these [existing] arrangements rather than creating a new statutory authority to manage our oceans'.(60) The lack of a new authority dedicated to 'overlooking' the oceans was considered disappointing by many who have wanted as a minimum an agency to take responsibility for ecological sustainability of oceans.(61)

Such an administrative arrangement, with a central authority to coordinate marine and coastal affairs, was proposed in 1993 by the RAC and again in 1997 by the Senate ERC&A Committee, which considered that the proposed authority should report direct to COAG because of its importance.(62) A government response to the recommendations of this inquiry was presented to the Senate Chair of Committees on 26 November 1998 and stated that:

A National Coastal Management Authority was again proposed in 1998 by the Australian Democrats. A central coordinating agency for coasts and oceans is a cornerstone of current US policy development (below, Northern Hemisphere oceans).

The role of local government in implementing an Oceans Policy is considered important but is not further addressed here.

Other plans

As well as the completed Action Plan for Australian Cetaceans (whales, dolphins and porpoises)(64), and the Marine Science and Technology Plan and the AQUAPLAN that are being developed, there may be other plans needed to implement the Oceans Policy such as a National Marine Conservation Plan, a Marine Reserves Plan, a Conservation Plan for the Australian Antarctic Territory, a Marine Industries Plan and a Security, Surveillance and Enforcement Plan. Such plans should pay due regard to existing strategies.

Other sectoral reporting

While the State of the Environment Reports provide a sophisticated reporting process every five years, consideration should be given to whether other sectors should report in a similar fashion. The sectoral reports for marine science and technology are found in the annual Science and Technology Budget Statements which provide information, for example in 1998-99, on marine research and strategic planning, geophysical initiatives relating to Law of the Sea and marine environment research. The fisheries sector reports through the Fishery Status Reports of the Bureau of Resource Sciences. These are much less detailed reporting processes than for the environment sector and are restricted to Commonwealth Government activities.

Legislation

There are three possible approaches to implementing Australia's Oceans Policy through legislation: dedicated coasts and oceans legislation, further developing the one treaty-one law approach or reforming existing legislation.

Dedicated oceans legislation

One option for Australia is to develop dedicated oceans legislation, as the Americans are considering in their Oceans Act 1997 (US) (below, Oceans Act 1997 (US)). The outcome of their deliberations is awaited. This approach has been supported by some in Australia but is not yet widely accepted. The Canadians have passed an Oceans Act 1996 (Canada) for the management of estuarine, coastal and marine ecosystems. The Canadian legislation however should not be used as a model for any possible Australian legislation without critical review as it not substantial. Any dedicated Australian oceans legislation would need to be carefully integrated with existing legislation and proposed Bills.

One treaty-one law approach

Australian legislation has often followed a one treaty-one law pattern even more so than in, say, the United States. This is as much the case for oceans legislation as onshore, if not more so, because of the strength of international agreements in a global environment like the oceans. The relationship between some international agreements to which Australia is party and national legislation is shown in Appendix 2. As the Minister for the Environment, Senator the Hon Robert Hill, has pointed out, much of the national environmental legislation in Australia has developed in a 'piece-meal' fashion.(65)

To continue with this one treaty-one law approach would require reconsideration of existing legislation and additional legislation to further implement international agreements. The Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP) is the only regional convention to which Australia is party that addresses land based marine pollution (LBMP) and it would confirm Australia's commitment to this convention to initiate national legislative activity on LBMP. SPREP, like UNCLOS, should be regarded as a framework agreement as neither provides detail as to how the various obligations are to be implemented, but legislation remains an option. (66)

The detailed consultancy on International Agreements prepared as part of the oceans policy development(67) seems to have been little considered in the Issues Paper, or at least the further implementation by domestic legislation of the international agreements to which Australia is party.

The reform of existing legislation

Rather than continue with the one treaty-one law approach, the government has decided on a reform of environmental legislation that will combine several Acts. The COAG decision listed seven matters of national environmental significance to include in the proposed reform of national legislation (above, Council of Australian Governments). The legislation that relates directly to implementing part of the proposed Oceans Policy, the Environment Protection and Biodiversity Conservation Bill 1998 (EP&BC Bill), was introduced to Parliament on 12 November 1998 and is currently before the Senate Environment, Communications, Information Technology and the Arts Legislation Committee. A Bills Digest is in preparation.

The EP&BC Bill includes the Marine and Coastal Environment as a matter of national environmental significance (at Chapter 2, Part 3, Division 1, Subdivision F). Other parts of the Bill also relate to marine matters, e.g. Assessment of Commonwealth-managed fisheries (Chapter 4, Part 10, Division 2). The Commonwealth has substantial management responsibilities for Commonwealth waters which need to be addressed in legislation but concerns have been raised about the marine environment being placed in a separate section of the legislation; the creation of an extensive list of marine species separate from the list of endangered species; possible inconsistencies between the level of environment protection for the oceans compared to other realms; and potential disputes at the marine-land interface.(68)

The EP&BC Bill incorporates some international agreements relevant to the oceans into the proposed legislation but leaves others to be implemented by existing legislation, e. g. sea dumping (Appendix 2). The inclusion and exclusion does not appear to follow any discernible pattern, which seems to run counter to one of the Minister's initial reasons given for reforming the legislation.

The EP&BC Bill was introduced to the Parliament prior to the completion of the Oceans Policy process and with no mention of that process.(69) This seems to lessen the relevance of the formal Oceans Policy document in legislative terms. On the other hand, a number of policies relevant to the oceans and a Strategy for Ecologically Sustainable Development, among other strategies, have been in place for many years, as described above at p. 18. It will be a challenge for the government to ensure that the EP&BC Bill is amended to be consistent with the final Oceans Policy, or should it be the other way round, the Oceans Policy reworked to be consistent with the final legislative outcome? Either way, there is a need to integrate the two processes.

Implementation of the United Nations Convention on the Law of the Sea

The effective implementation and enforcement of the vast range of international ocean law now available remains the top priority for oceans law identified by Agenda 21 of the UN Conference on Environment and Development held in Rio de Janiero from
3-14 June 1992 the(Rio Earth Summit ).(70)

The UNCLOS was negotiated with about 150 countries and resulted in a text which provides a comprehensive code of legal principles regarding human activities at sea. The UNCLOS covers issues such as maritime zones; the limits of maritime boundaries; fisheries and marine resource conservation and management; piracy; transit passage through international straits; protection and preservation of the marine environment; marine scientific research and mining of the deep seabed. The 1982 UNCLOS entered into force on 16 November 1994 with Australia a party to the Convention.

One important aspect of the Convention is that it confirms the international legal concept of the EEZ which extends, in Australia's case, up to 200 nm from the coast. The Australian EEZ was declared on 1 August 1994 and provides Australia with sovereign rights over its living and non-living resources. UNCLOS obliges Australia to protect and preserve the marine environment in the zone (Article 192) and exploit its marine resources accordingly (Article 193).(71) As Dr Nicholas Brunton explained to a Senate ERC&A Committee hearing:

Some, such as Ms Caroline Williams, even considered that:

The Convention requires Australia to further advance knowledge of its EEZ by undertaking marine scientific research and this is discussed elsewhere in this paper. The Convention also reflects the current concerns about achieving ecologically sustainable development within the EEZ. This has been considered a necessity as an over-arching principle for the Oceans Policy (above, Ecologically sustainable development).

Marine pollution

The Convention requires Australia to cooperate to prevent land-based marine pollution (LBMP) and to work internationally to achieve this. Part XII of UNCLOS deals with the protection and preservation of the marine environment. It contains two specific provisions relating to pollution from land-based sources, namely Article 207 and Article 213.(74) Despite Australia's obligations to prevent, reduce and control LBMP under UNCLOS, there is no legislation enacted by the Commonwealth applying directly to LBMP.(75)

A comprehensive analysis of State and Territory legislation dealing with marine pollution is beyond the scope of this Research Paper. It may be found in Marine Pollution Laws of the Australasian Region by Michael White QC and in a less detailed form in the submission to the Senate ERC&A Committee prepared by the Commonwealth Attorney-General's Department.(76)

Any plans that the government may have to introduce legislation in the Year of the Oceans to further implement UNCLOS have not been announced.

National Environment Protection Measures

The National Environment Protection Measures Bill 1997 (Cwlth) refers to 'ambient' standards, that is standards of the surrounding air and water, and not to individual industrial and sewer discharges. A National Environment Protection Measure (NEPM) for marine and coastal waters is currently being developed. There are few codes of practice in Australia to regulate diffuse sources of land based marine pollution. Overseas experience, principally in the USA, has shown that sole reliance on ambient standards will not achieve the results of long-term sustainability of coastal ecosystems. Further, to assist the implementation of UNCLOS, the Senate Committee in its report on Marine and Coastal Pollution recommended that there is a need to amend the National Environment Protection Council Act 1994 (Cwlth) in order to give the Council wider powers to make NEPMs to address land based marine pollution. The Committee considered that negotiations with the States should be undertaken as soon as possible in order to pass the necessary legislation in each jurisdiction.

Regional marine science and technology centres

UNCLOS requires the establishment of a national marine scientific and technological research centre, the strengthening of existing national centres, particularly in developing coastal States (article 275), and the establishment of broadly-based regional centres (articles 276-7). Whilst Australia does not have a national marine centre, article 275 would encourage the coordination of all the centres involved in marine science and technology in Australia (above, Recent funding) and a greater contribution to marine science and technology in the Australia-Pacific Region.

Security, surveillance and enforcement issues

Pressures for surveillance and enforcement operations to protect Australia's national interest in the maritime jurisdictional area and adjacent high seas are likely to increase. As discussed in the Introduction to this Paper, Australia has accepted responsibility for a search and rescue area that is equivalent to one-ninth of the earth's surface. In addition, there is more widespread illegal fishing, an increasing number of offshore oil and gas installations and a greater concern about protecting the offshore marine environment. Appropriate surveillance and enforcement provisions are necessary to protect Australia's remote fisheries resources and a further $16 million over 4 years has just been announced to protect the Patagonian toothfish fishery around Heard and McDonald Islands in the Southern Ocean.(77)

At present, responsibility for surveillance and enforcement is shared between various government civil agencies, such as the Australian Customs Service and the Australian Maritime Safety Authority (AMSA). The Australian Defence Force provides most of the maritime response capability in offshore areas and carries out surveillance operations. The Ministerial Advisory Group on Oceans Policy considered that while 'the Navy should continue to conduct patrol and enforcement operations in support of civil agencies', there are a number of other options for responsibility for increased surveillance and enforcement which could be explored (Recommendation 94). (78)

There have long been concerns that the defence forces are exempt from environment legislation. They are able to carry out activities such as sea dumping and Operation Tandem Thrust 97, an amphibious training exercise between Australia and the US Marine Corps, considered to have the potential for environmental damage to dugong.(79) The formation of an oceans policy might be an appropriate time to consider whether the defence forces, in time of peace, should be subject to national legislation in areas such as this. The Issues Paper, while mentioning Defence freedom of operations (5.4.1) did not consider the matter. The Environment Protection (Sea Dumping) Bill 1998, which was scheduled to have been introduced into Parliament in August 1998, would have pre-empted a change of policy by removing the Defence exemption for sea dumping.(80)

Oceans policy-International comparisons

In some respects, Australia is a world leader in marine science and management and will shortly become one of the first countries in the world to develop an oceans policy. However, there is no room for complacency; there is much to be learnt from other countries about the fundamental role of marine science and technology and options for policy implementation.

Northern Hemisphere oceans

In the United States in 1998, the Marine Board of the National Resource Council in a report Striking a Balance: Improving Stewardship of Marine Areas recommended the creation of a National Marine Council and Congress is considering legislation. The paper Oceans: An Agenda for Action provides a useful set of goals for the proposed initiatives.(81)

The proposed legislation, the Oceans Act 1997 (US), calls for the development, maintenance and implementation of a coordinated, comprehensive and long-range national policy for domestic ocean and coastal activities. To accomplish that objective, it would establish a Presidential Commission to examine ocean and coastal activities and report within 18 months its recommendations for a national policy. The Commission would continue to meet at least once every five years to assess the Nation's progress in meeting the objectives of the Act. It would authorise the appropriation of US$6 million during fiscal years 1998 and 1999 for the Commission to do its work. The Senate version of the Bill would, in addition, establish a high-level Federal interagency Council chaired by the Secretary of Commerce to advise the President and serve as a forum for developing and implementing an ocean and coastal policy in coordination with non-Federal and international interests. There is currently no committee action scheduled on these Bills.(82) As the report Our Ocean Future from the Heinz Center considered:

Canada has in place a number of coastal and ocean management 'policies'. The National Marine Parks Policy 1986 stressed conservation of marine resources while recognising that certain activities such as commercial fishing, shipping and traditional animal harvesting could be carried on in marine parks without threatening the values they are intended to protect. The preamble to the Oceans Act 1996 (Canada) provides a concise statement of policy and principles to guide the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems. However, this preamble may not be legally binding.

The discussion paper Towards Canada's Oceans Strategy lists issues to be addressed by a national strategy, placing 'understanding the oceans' first:

The adoption of legislation and the proposed national strategy by Canada, without a formal oceans policy document, illustrates the varied ways that oceans management is approached in different countries.

Europe depends upon, and is influenced by, marine conditions more than any other developed continent and because of this high profile on marine and coastal matters, the Council of Europe held a Parliamentary Conference on the Oceans on 19 March 1998. Three main themes were: the need to understand the oceans better; the need to develop the oceans resources in a sustainable fashion; and the need to ensure that there are in place the right structures and mechanisms to achieve both these aims.(85) The European Community plays an increasingly important role in managing discharges of dangerous substances, municipal wastewater, fisheries and the quality of bathing waters. Such actions taken by the Community to achieve a high level of environmental protection can have a beneficial effect on the marine environment. Discussion of the North Sea conference is beyond the scope of this paper but in the United Kingdom, under the Cleaner Seas program, the Department of the Environment, Transport and Regions has both the coordinating role on marine environment policy and responsibility for policy on control of marine pollution from land-based sources.(86)

Australia's ocean neighbours

Australia shares oceanic borders with five neighbours: New Zealand, Papua New Guinea, the Solomon Islands, Indonesia, and France (both New Caledonia and the Kerguelen Islands in the sub-Antarctic). This raises a number of opportunities for Australia to exchange experience with its neighbours.

The New Zealand Coastal Policy Statement 1994, required by the Resource Management Act 1991 (RM Act), provides a policy framework to promote the sustainable management of the natural and physical resources of the NZ coastal environment, defining the coastal environment as extending out to the 12 nm limit of the territorial sea. One of the reasons given by the NZ government for the development of the policy was that the controlling legislation, the Harbours Act 1950, had no provision for coastal policies or plans, or for public participation in the decision making process. This situation has now been rectified and the Policy is implemented through regional coastal plans and control of restricted coastal activities, both required under the RM Act. The development of an oceans policy is now under consideration by the government.

Some economists consider that New Zealand has made a transition from exploitative to sustainable resource development as part of its Environment 2010 Strategy.(87) The fisheries sector is now moving from resource management to ecosystem management by outlining 12 founding principles that underpin the Fisheries 2010 Strategy. New Zealand has a unique approach to indigenous representation in coasts and oceans issues(88) and is aware of the 'risks to Maori customary fisheries' posed by inappropriate development.(89) While only 4% of the NZ territorial sea is protected in marine reserves, these reserves appear to afford total protection to the marine habitats and species, as opposed to the concept of 'multiple use' reserves which has become widespread in Australia. There are many opportunities for Australia to continue to engage in useful discussion through the Australia and New Zealand Environment and Conservation Council (ANZECC), the Ministerial Council on Forestry, Fisheries and Aquaculture (MCFFA) and the Australia and New Zealand Minerals and Energy Council (ANZMEC).

Papua New Guinea has included the environment in its Constitution. There is a risk that the natural environment of the Torres Strait between Australia and PNG will be affected by human activity given the amount of shipping traffic through the region, local and nearby mining activities, logging activities in Papua New Guinea and eastern Indonesia and commercial fishing in Torres Strait. The Torres Strait Environment Management Committee was established under the Torres Strait Treaty 1975, a bilateral arrangement between Australia and PNG. The Committee meets on an annual basis to discuss the environmental management of the Torres Strait Protected Zone and this provides on-going opportunity for co-operation with our northern neighbour.(90)

Australia's ocean relationship with Indonesia, particularly the Timor Gap Treaty, could be under review as a result of recent developments in East Timor.(91) There is a need to reassess the administration of Australia's Indian Ocean territories in view of the move towards statehood for the Northern Territory.

A bilateral arrangement, the Australia-France Arrangement for Cooperation in Marine Science and Technology, provides for the exchange of shiptime between the two nations for research on continental margin evolution and EEZ resource management, particularly around the Australia-France maritime boundary in the South Pacific. Priorities for research under the arrangement include fisheries, coral reefs, aquaculture and the coastal zone. Some Australian scientists are funded under the program to work in French Polynesia. Australia has played a useful role in assisting the Pacific island states to realise their ocean potential.(92)

The Antarctic region (including the Southern Ocean) remains the subject of more comprehensive international agreements for resource management and environment protection than any other part of the earth's surface. Commonwealth funding for Antarctic research has had bipartisan support for many years and this has enabled Australia to retain its high international reputation among Antarctic Treaty members. Nonetheless, the incoming Chief Scientist of the Australian National Antarctic Research Expedition (ANARE) called for greater awareness within the community of the importance of the area.(93)

Future international directions

It is the UNCLOS that has given the United Nations its 'pivotal role in oceans governance':

Next year, 1999, is set aside for reconsideration by the Commission on Sustainable Development (CSD) of the oceans chapter (Chapter 17, Protection of the Oceans) of Agenda 21, arising from the Rio Earth Summit (above, Rio Earth Summit). Whilst many would agree that there is no need to create a new international agency or institution to take decisions about the marine environment, there are a number of options to assist coordination and remove duplication. These include a review of existing UN programs that relate to the oceans, a United Nations Conference on Ocean Affairs and a World Ocean Affairs Observatory.(95)

It is anticipated that Australia will play an important role in progressing these international initiatives arising from the report of the Independent World Commission on the Oceans, when they are considered by the United Nations General Assembly and the General Conference of UNESCO.

Conclusions

The International Year of the Oceans has increased awareness of some of the concerns facing Australia and has encouraged the production of an Oceans Policy. However, the opportunity appears to have been lost in 1998 for rigorous discussion of many of the issues that will shape the future of our oceans. Although the Issues Paper for an Oceans Policy was produced in May 1998, there has been limited public debate about the policy to date or about its implementation and any legislation required.

When the Australian Oceans Policy is finalised, it will need to include 'a statement of national vision, associated goals and strategies'.(96) Moreover, the Policy will be judged on its capacity to:

• define a framework of ecologically sustainable development (ESD), incorporating the precautionary principle and managing uncertainty
• recognise the important role of marine science and technology
• conserve the marine environment particularly with regard to usage by traditional communities
• adopt a cross-sectoral approach to offshore mining and petroleum; fisheries; shipping; tourism and other marine industries
• protect Australia's defence and security interests
• encompass Antarctica, the sub-Antarctic islands and the Indian Ocean territories, and
• guarantee Australia's leadership in marine and coastal management within the Asia-Pacific Region.

The end of 1998, the International Year of the Oceans, should not be the end of managing Australia's oceans but the beginning of a more coherent national strategy. It can be argued that implementation of marine and coastal policies should be continued with a financial commitment to scientific and technological research and development, and appropriate legislation be developed, along with programs with a long-term focus as an ongoing part of Australia's commitment to the optimum management of Australia's oceans. The critical issue of central coordination of both marine and coastal matters through a Ministerial Council, an Authority or an advisory body has not yet been addressed. The danger is that the existence of an Oceans Policy will be a substitute for active management, legislation and funding. The main aim is surely to avoid irreparable damage to the three oceans and three tropical seas for which Australia is responsible.

Endnotes

1. The Rt Hon Sir Ninian Stephen KG AK GCMG GCVO KBE, Foreword to White, M W D, Marine Pollution Laws of the Australasian region, Federation Press, 1994, p. iii.
2. 'Government releases Oceans Policy Issues paper', Media release, Senator the Hon Warwick Parer, Minister for Resources and Energy, 19 May 1998.
3. Australian Bureau of Statistics, Environment issues: People's View and Practices. ABS Catalogue No. 4602.0, 1996, p. 11.
4. based on White, M W D, Marine Pollution Laws of the Australasian region, Federation Press, 1994, pp 172-175.
5. Australia's Oceans Policy - An Issues Paper Caring-Using-Understanding. For public comment, May 1998, p 24. (Hereinafter 'Issues Paper'). Also at http://www.erin.gov.au/marine/oceans/index.htm., p. 79.
6. World Commission on Environment and Development, Our Common Future (The Brundtland Report), 1987.
7. Issues Paper.
8. 'Research can unlock new ocean wealth - Scientist', CSIRO Media release 98/238, 1 October 1998. Also at http://www.csiro.au
9. Professor Ken McKinnon, Chairman, Review Committee on Marine Industries, Science and Technology, Oceans of Wealth?, Australian Government Publishing Service, 1989, 188 pp.
10. 'Ten Year Marine Conservation Initiative Announced', Media Release, the Hon Ros Kelly MP, Minister for the Arts, Sport, the Environment, Tourism and Territories, 20 August 1991.
11. Graeme Kelleher and Richard Kenchington, Guidelines for Establishing Marine Protected Areas, IUCN, Gland, Switzerland in collaboration with the Great Barrier Reef Marine Park Authority, 1991, 79 pp.
12. Australian Committee for IUCN, Towards a Strategy for the Conservation of Australia's Marine Environment, ACIUCN Occasional Paper Number 5, ACIUCN, 1994, 29 pp.
13. Resource Assessment Commission, Coastal Zone Inquiry. Final Report, Australian Government Publishing Service, 1993, 635 pp.
14. Dr Leon Zann (compiler), Our Sea, Our Future. Major findings of the State of the Marine Environment Report for Australia, Great Barrier Reef Marine Park Authority for the Department of the Environment, Sport and Territories, 1995, 112 pp.
15. Living on the Coast, the Commonwealth Coastal Policy, Department of Environment, Sport and Territories, 1995, 70 pp.
16. Centre for Maritime Policy at the University of Wollongong and the Royal Australian Navy Maritime Studies Program, Oceans management policy; the strategic dimension, Canberra May 1994; Royal Australian Navy Maritime Studies Program, Centre for Maritime Policy at the University of Wollongong, and the Australian Institute for International Affairs, Rights and Responsibilities in the Marine Environment: national and international dilemmas, Canberra, 1995.
17. Senate Environment, Recreation, Communications and the Arts References Committee, Marine and coastal pollution, Parliament of the Commonwealth of Australia, October 1997, p. 81.
18. Prime Minister's Science and Engineering Council, Australia's Ocean Age: Science and Technology for Managing our Ocean Territory, Office of the Chief Scientist, Department of the Prime Minister and Cabinet, 1995, 48 pp.
19. Oceans policy: statement', Press Release, the Hon Paul Keating MP, Prime Minister, 8 December 1995.
20. 'Saving our Natural Heritage - for all of us', News Release, the Hon John Howard MP, 31 January 1996, and Saving our Natural Heritage, pp 27-30.
21. The Hon John Howard MP, House Hansard, 3 March 1997, p. 1698
22. Heads of Agreement on Commonwealth/State roles and responsibilities for the environment between the Commonwealth of Australia, the state of New South Wales, the state of Victoria, the state of Queensland, the state of Western Australia, the state of South Australia, the state of Tasmania, the Australian Capital Territory, the Northern Territory of Australia, and the Australian Local Government Association (November 1997) has not been formally released. It is available on the web site of the Australian Conservation Foundation (ACF) at http://www.peg.apc.org/~acfenv/coag.htm
23. Dr Trevor Ward, 'Will a National Oceans Policy help to conserve marine ecosystems and biological diversity?' Australian Marine Conservation Society Bulletin. Autumn 98. Vol. 20, No. 2: 11-14.
24. Issues Paper.
25. Dr Conall O'Connell, 'Towards an oceans policy', The Canberra Times, 30 June 1998, p. 7.
26. Independent World Commission on the Oceans, The Ocean. Our Future, Cambridge University Press, 1998, p. 19.
27. The Commonwealth Coastal Policy, op.cit., p. 7.
28. The Marine Science and Technology Plan Working Group, Australia's Marine Science & Technology Plan. Draft for Consultation, June 1998, 96 pp. Also at http://www.dist.gov.au/science/policy/marine/marinest.html
29. Issues Paper, Section 1.2 What will Australia's Oceans Policy do? p. 10.
30. Department of Industry, Science and Resources officials.
31. National Strategy for Ecologically Sustainable Development, Australian Government Publishing Service, 1992, 128 pp.
32. National Strategy for the Conservation of Australia's Biological Diversity, Department of the Environment, Sport and Territories, 1996, 54 pp.
33. Endangered Species Advisory Committee, An Australian National Strategy for the Conservation of Australian Species and Communities threatened with Extinction, Australian National Parks and Wildlife Service, 1992, 36 pp.
34. National Greenhouse Response Strategy, Australian Government Publishing Service, 1992, 114 pp.
35. Monica Mulrennan, Towards a Marine Strategy for Torres Strait (MaSTS), Australian National University North Australia Research Unit and the Torres Strait Island Coordinating Council, 1993, 52 pp.
36. Evans-Smith D (ed), National Ecotourism Strategy, Commonwealth Department of Tourism, 1994, 68 pp.
37. Towards a National Cruise Shipping Strategy, Tourism Discussion Paper, No. 2, Commonwealth Department of Tourism, 20 pp.
38. M. Arens, A Waste Management Strategy for Australia's Antarctic operations, Australian Antarctic Division, 1994, 43 pp.
39. National Recreational Fisheries Working Group, Recreational Fishing in Australia. A National Policy, December 1994, 25 pp.
40. John Handmer and Martijn Wilder, Towards a Conservation Strategy for the Australian Antarctic Territory , Centre for Resource and Environmental Studies, Australian national University, 1993.
41. Australian Ballast Water Management Strategy, December 1995.
42. Australian Marine Industries and Sciences Council, Marine Industry Development Strategy, Department of Industry, Science and Tourism, 1997.
43. Agriculture and Resource Management Council of Australia and New Zealand, Australian and New Zealand Environment and Conservation Council, Forestry Ministers, The National Weeds Strategy. A strategic approach to weed problems of national significance, June 1997.
44. Tourism. A ticket to the 21^st Century. National Action Plan for a competitive Australia, Department of Industry, Science and Tourism, 1998.
45. Marine Strategy for the Torres Strait (MaSTERS), in preparation.
46. pers. comm.
47. Qld had a 'reasonable effort, even if largely driven by Commonwealth leadership', Tasmania has the 'beginnings of a good representative system' and WA scored for 'public commitments announced for four major areas'. NSW, NT, SA and Vic were downgraded on the basis of 'no or scarcely any new areas in 1997'.
48. 'The Marine Protected Areas Report Card Project 1997', World Wide Fund for Nature, 1997, Media Kit, Sydney, 12 pp.
49. Ibid.
50. Prideaux, M., Emmett, J., and Horstman, M.. 'Multiple use or abuse?' Habitat Australia. Vol. 26 No. 2, April 1998, 13-20.
51. Dr Nan Bray, Chief, CSIRO Marine Research, 'The Ocean Planet', The Joyce Allen Lecture, Australian and New Zealand Association for the Advancement of Science (ANZAAS), Hobart, 30 September 1998.
52. Dr Leon Zann, op. cit.
53. 'State of the Environment. Australia'. Statements. The newsletter of national State of the Environment Reporting, No. 8, July 1998, pp 5-6.
54. current at 15 October 1998.
55. Contact http://www.imo.org/imo/wmd/intro.htm and the Australian National Maritime Museum, Sydney.
56. http://www.yoto98.noaa.gov/oceanc2/index.html
57. Mulrennan, Monica, op. cit.
58. CSIRO Marine Research, Torres Strait Conservation Planning Project Overview Report, Report MR_GIS 97/7, 1997, 43 pp + annexes.
59. 'AMSA's Response to Oceans Policy and draft MST Plan', AMSA Bulletin 143, July 1998, p. 21.
60. Senator the Hon Warwick Parer, op. cit.
61. 'Oceans policy up for discussion', Australian Environment Review, Vol 13, No. 5, p. 2.
62. Senate Environment, Recreation, Communications and the Arts References Committee, op. cit.
63. Whole of Commonwealth Government response to the Inquiry into Marine and Coastal Pollution by the Senate Environment, Recreation, Communications and the Arts References Committee, 26 November 1998.
64. J. L. Bannister, C. M. Kemper and R. M. Warneke, The Action Plan for Australian Cetaceans, Wildlife Australia Endangered Species Program Project Number 380, Australian Nature Conservation Agency, September 1996.
65. Environment Protection and Biodiversity Conservation Bill 1998, Explanatory Memorandum.
66. The two 1986 Protocols in relation to South Pacific conventions address sea-based sources of marine pollution. Australia is a party to both protocols.
67. Herriman, M., Tsamenyi, M., Ramli, J. and Bateman, S., Australia's Ocean Policy. International Agreements. Background Paper 2. Review of International Agreements, Conventions, Obligations and other instruments influencing use and management of Australia's marine environment. A report commissioned by Environment Australia. Centre for Maritime Policy, University of Wollongong, 1997, 144 pp.
68. National Environmental Law Association (ACT Division), Seminar, Canberra, 12 August 1998; National Environmental Law Association (Victorian Division), Seminar 20 August 1998.
69. This was also the case in Canada, where the Oceans Act 1996 is in place prior to the Policy being developed. (See later in text).
70. Independent World Commission on the Oceans, op. cit., p. 149.
71. Dr Frances B Michaelis, Further Comment on the Law of the Sea, the EEZ and the marine environment, Waves, Vol 1, No 5, November 1994. p. 6.
72. Nicholas Brunton, Official Hansard Report, Senate Environment, Recreation, Communications and the Arts References Committee, Canberra, 25 March 1997, p. 273.
73. Ms Caroline Williams, quoted in Senate Environment, Recreation, Communications and the Arts References Committee, op. cit., p. 85.
74. Article 213 provides the basic constitutional framework for Commonwealth legislation enacted to enforce anti-pollution measures taken in accordance with Article 207. Office of International Law, Attorney-General's Department (dated 1995) Submission No. 59 reproduced by the Senate Environment, Recreation, Communications and the Arts References Committee, op. cit., Appendix 3.
75. M W D White, op. cit., p. 172.
76. Office of International Law, Attorney-General's Department, op. cit., 165-166.
77. 'Australia gains action on Antarctic illegal fishing', Joint media statement, Senator the Hon Robert Hill, Minister for the Environment and Heritage and the Hon Mark Vaile MP, Minister for Agriculture, Fisheries and Forestry, 6 November 1998.
78. Australia's Oceans Policy. Report of the Ministerial Advisory Group on Oceans Policy, Environment Australia, March 1998, pp. 45-46 and Appendix 1.
79. Senate Environment, Recreation, Communications and the Arts Legislation Committee, Hansard, Consideration of Estimates, 27 February 1997, p. 24.
80. This Bill was included in the list of 'Legislation proposed for introduction and/or debate in the 1998 Spring sittings', dated 11 August 1998, but not in the revised version dated 11 November 1998.
81. Discussion papers prepared for the National Ocean Conference, Naval Postgraduate School, Monterey, California. 11-12 June 1998. Also at http://www.yoto98.noaa/gov/yoto.meeting/foreword.html
82. United States Information Service Research Center, 12 November 1998.
83. The H John Heinz III Center for Science, Economics and the Environment, Our Ocean Future. Themes and issues concerning the Nation's stake in the oceans. Developed for discussion during 1998, the Year of the Ocean , The H John Heinz III Center for Science, Economics and the Environment, Washington DC, 1998, 57 pp. Also at http://www.heinzctr.org
84. http://habitat.pac.dfo.ca/mpa/oceans/toward.htm, released January 1998
85. Closing speech at the Council of Europe parliamentary Conference on the Oceans, John Battle MP, 19 March 1998 at http://www.dti.gov.uk/Minspeech/oceans.htm
86. http://www.environment.detr.gov.uk/cleanerseas/index.htm
87. Environment 2010 at http://www.mfe.govt.nz/issues/index.htm
88. For example, Sealord Group Ltd (a major NZ fishing company) is a partnership between the European and Maori people of New Zealand. It is wholly owned by the Te Ika Paewai Limited, whose two equal shareholders are Brierley Investments Limited and Te Ohu Kai Moana (the Treaty of Waitangi Fisheries Commission).
89. Ministry of Fisheries. Te Tautiaki i nga tini a Tangaroa. Changing Course - Sustainable fisheries in a healthy aquatic eco-system. 16 pp. (Also at http://www.fish.govt.nz/strategy.htm)
90. Professor Anthony Bergin and Dr Frances B Michaelis, 1996, Australia and the South Pacific: implementing the UNCED oceans agenda, Marine Policy, Vol. 20 No. 1, 49-50.
91. M Davis, 'Turmoil puts mining agreements in doubt', Business Review Weekly, 28 September 1998. pp 31-32.
92. Prof Anthony Bergin and Dr Frances B Michaelis, op cit, 47-62.
93. Professor Michael Stoddart, SciTech, 2 October 1998, p. 2.
94. Independent World Commission on the Oceans, op. cit., pp 159, 161.
95. Ibid.
96. Ken McKinnon AO, 1996, 'The Law of the Sea and Australian Ocean Policy', in Martin Tsamenyi, Sam Bateman and Jon Delaney (eds), 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, Centre of Maritime Policy, University of Wollongong, p. 221.

Appendix 1. Selected Commonwealth government departments and organisations relevant to the oceans.

Appendix 2. Relationship between selected international agreements to which Australia is party, relevant to the marine and coastal environment, and national legislation (including the Environment Protection and Biodiversity Conservation Bill 1998).

Appendix 3. Internet sites established for the International Year of the Oceans

Australian sites

International sites

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