Bordered Justice: Legal Erasure and the Performance of Accountability in the Montara Commission of Inquiry

• Pages: 61–82
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Fia Hamid-Walker
• Subject Matter: Derecho Público y Administrativo

61

BORDERED JUSTICE: LEGAL ERASURE

AND THE PERFORMANCE OF

ACCOUNTABILITY IN THE MONTARA

COMMISSION OF INQUIRY



Abstract

is articl e critically examines the Montara Commissi on of Inquiry through the lens

of critical legal theor y. Drawing on NVivo-coded analysis of stakehold er submissions and

grounded theory method, the a rticle rev eals how the Inquiry, while for mally desi gned

to invest igate Australia’s wo rst oshore oil disaster, ultim ately reinforced jur isdictional

boundaries and technocrat ic state legi timacy. e In quiry’s exclusion of West Timore se

perspectives and tran sboundary e nvironmental h arms is interpreted a s an ins tance of

legal bordering – a process whereb y law constructs spatial, epi stemic, and political limits

on wh at can be recognis ed as harm. e article argues that public inquiries serve not

only as mechanisms for seeking truth but also as s ites of sove reign performan ce, where

accountabil ity is performed without recourse to str uctural mec hanisms. By reframing

the Montara Inquiry as a bordered juridica l eld, the a rticle demonstrat es how disaste r

governance under conditions of settler colonialism and neoliberalism operates to

erase postcolonial suer ing wh ile rea rming state authority. e ndings call for a

reevaluation of legal geography, public inquiry design, and the politics of environmental

accountabil ity in the context of an ecologic al crisis.

Keywords: Monta ra oil spill; pu blic inquir y; disast er law; environme ntal justic e;

legal geog raphy; jur isdict ion; tran sboundar y harm; c ritica l legal the ory; lega l

erasure

* Transn ational L egal Advisor and Do ctoral C andidat e in Disas ter Juri sprudence an d Critica l

Theory at Melb ourne Law School .

62 [Vol 32, 2025]

I. Framing the Inquiry: Law, Disaster, and the

Limits of Accountability

On 21 Augu st 2009, the Mont ara well head platform ex ploded in Aus trali an-

controlled water s of the Timor Sea, releasi ng an uncontrolled ow of oil and gas into

the oce an over a 74-d ay period. K nown as t he Montara oil spill (also referred to as

the Spill), it remain s one of the worst oshore environmenta l disasters in Austra lia’s

recent hist ory. The incident prompt ed the Aust ralia n Government t o establi sh a

federal public inqu iry under pt 9.10A of the Oshore Petroleum and Greenhou se Gas

Storage Ac t 2006 (Cth). The Mont ara Commis sion of Inquiry was endowed with the

powers of a Royal Com mission, tasked wi th investigatin g the cause of the incident

and assessi ng its environmenta l impacts . Despite the s everity a nd transb oundar y

nature of the Spil l, t he Montara Inquir y’s oci al Terms of Reference narrowly

focused its i nvestigat ion, sidelin ing critic al question s of accountabi lity a nd silencing

the voices of aec ted communitie s beyond Australi a’s territorial b oundaries.

This ar ticle arg ues that t he Montara Com mission of Inqu iry f unctioned as a

technocr atic apparat us that s trateg ically fore grounded in stitut ional na rratives of

procedura l adequacy wh ile mar gina lising br oader public disc ourses, pa rticul arly

those emerg ing from Indone sia’s West Timor reg ion. While t he Inquir y appeare d

partic ipatory a nd independent, it s struct ure and f ramin g reveal a n underlyin g

executive logic des igned to manage reput ational risk, re assert control over oshore

regulat ion, and defer pol itical acc ountabil ity. Drawi ng on the disc ourse ana lysis

and groun ded theory met hods, th is art icle exami nes the Inqu iry’s docum entary

archive a nd selected su bmissions t o uncover how cert ain represen tations of th e

Spill were pri vileged. In contr ast, others were sys tematicall y omitted or deval ued.

To support th is argument , the article is d ivided into seven pa rts. Part I I situates

the Montar a Inquiry w ithin the broader le gal context of Aus tralia n public inquir ies,

with at tention to their str ucture, authorit y, and limit s, particula rly as understood

by interna tional rea ders unfa milia r with Au stral ian Adm inist rative law. Par t III

outlines t he methodolog ical fra mework, which c ombines disc ourse ana lysis wi th

grounded t heory codi ng using N Vivo soft ware to iden tify t hematic patt erns in

the submissions to the Montara Inquir y. Part IV presents t he empiric al nd ings,

identify ing the domi nant themes – E nviron mental, Moni toring, A ccountabi lity,

and Env ironmental I mpacts – and t racking how t hey were dierenti ally frame d by

government agenc ies, corporate act ors, and civil s ociety groups. Pa rt V anal yses the

conict ing nar ratives t hat emerged in relat ion to regulator y failur es, evidenti ary

omissions, a nd civil society m arginal isation. Part V I critiques the poli tical funct ion

of the Montar a Commission of I nquir y, arguin g that its s truct ure precluded