The Australian Antarctic Territory has only transient inhabitants, and few of them. It has none of the legal infrastructure of an inhabited state, such as police or courts, but its legal regime is still relatively complex and contains a significant body of law, particularly environmental law.
The Australian Antarctic Territory Act 1954 is the basis for Territory law. It provides for Commonwealth laws expected to extend to the Territory, for Territory ordinances, for application of Australian Capital Territory laws (except criminal laws) and for application of Jervis Bay Territory criminal laws.
Commonwealth laws made expressly for the territory focus largely on the protection of the environment. Many flow from international obligations arising from Australia’s participation in the Antarctic Treaty system, so Commonwealth laws enacted specifically for the territory are generally to enable Australia to ratify the international agreements. Examples of such laws are the Antarctic Treaty (Environment Protection) Act 1980 (amended in 1992 to implement the Madrid Protocol) and the Antarctic Marine Living Resources Conservation Act 1981 (which implements the Convention on the Conservation of Antarctic Marine Living Resources). In Australia international agreements cannot be enforced against individuals until they become law.
Ordinances made under the Australian Antarctic Territory Act are specific to the territory and apply to everyone there. These ‘State’ type laws include the Criminal Procedure Ordinance 1993 (enabling enforcement of the other laws such as the environmental laws) and the Weapons Ordinance 2001 (implementing the National Firearms Agreement), allowing weapons to be used only for scientific research in very limited circumstances). Ordinances apply only to the territory, whereas laws enacted to fulfil Australia’s obligations under the Antarctic Treaty system have a wider application and apply to Australians anywhere in the Treaty area.
Finally, Australian Capital Territory non-criminal laws and the Jervis Bay Territory criminal laws are applied to fill any voids insofar as there are no specific laws. Such applied laws operate in the same way that Ordinances do in that they do not apply outside the territory.
The Madrid Protocol, signed in 1991, could only enter into force following ratification by all Parties. Australia’s legal system requires that implementing legislation be passed by the Parliament. As Australia had been instrumental in developing the Madrid Protocol, the Government gave a high priority to implementation. The Antarctic (Environment Protection) Legislation Amendment Act was passed in 1992 and by 1994 all necessary regulations had been made. As a consequence, Australia was the first country to ratify the Protocol on the basis of new legislation.
Wendy Fletcher
Legal Adviser,
Australian Antarctic Division