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Published online by Cambridge University Press: 24 January 2025
1 (1978) 16 A.LR. 623; (1977) 51 A.L.J.R. 806. High Court of Australia;Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
2 The principal Act therefore became the Museum Act 1959-1964.
3 Defined in s. 4 of that Act so as to include parts of the sea-bed.
4 S. 7(2) of the Maritime Archaeology Act.
5 Anderson v. The Commonwealth (1932) 47 C.L.R. 50, 52.
6 That of Stephen J.
7 (1978) 16 A.L.R. 623, 633.
8 Id. 672-673.
9 Id. 661.
10 Id. 650-660. In so doing his Honour was aware that this judgment might be seen as going off on a technicality. He felt, however, that in this case the matters he had discussed went to the root of the plaintiff's claim. Nonetheless, it does seem a pity that he could not have devoted more attention to the other issues before the court in view of the very even division of the court in relation to them. One point in his Honour's judgment that may interest some is his discussion of some of the most delightfully named cases in the common law, including The King v. Forty-Nine Casks of Brandy (1836) 3 Hagg. 257, 166 E.R. 401.
11 (1978) 16 A.LR. 623, 641-642.
12 It is submitted that this point is not as strong as the first. It would seem to allow anyone to challenge any criminal statute if he can prove that he has, at some stage before the legislation came into force, done those acts that subsequently constitute an offence and that he would like to do them again. It would appear that this sort of consideration was in the mind of Stephen J. when he held that there was no standing.
13 (1978) 16 A.LR. 623, 675. Baker v. Carr (1961) 369 U.S. 186, 204.
14 Id. 661 per Mason J.
15 Cf. the Seas and Submerged Lands Act case (New South Wales v. The Commonwealth (1915) 8 A.L.R. 1).
16 The principal case in this area is the Privy Council decision of Croft v. Dunphy [1933] A.C. 156. This was an appeal from a Canadian court but the principles are of general application.
17 (1976) 9 A.L.R. 289.
18 (1978) 16 A.L.R. 623, 643. This reasoning would not extend to making laws with respect to neighbouring States as there would be no legislative vacuum there as there is with the sea-bed in the absence of Commonwealth legislation.
19 Id. 664.
20 Id. 660.
21 Id. 636.
22 Ibid. The Chief Justice did not consider the third point raised by Gibbs J. If, as this case suggests (see infra), the States have some legislative power with respect to the sea-bed, would it not be correct to say that the preservation of order would be one topic that would allow a degree of regulation?
23 Id. 615.
24 Id. 664.
25 Id. 672. In fact, his Honour's comments probably only relate to State legislation dealing with “dominion”, a term that he does not define.
26 E.g. most laws dealing with the preservation of order should be valid in the absence of inconsistency with Commonwealth legislation.
27 S. 523. In fact, this was the only one of the sections of the Merchant Shipping Act dealing with wrecks that the court regarded as having any potential operation in Australian waters. One matter in this context that was not referred to by the court was that s. 523 did not create a new legal right in the Crown. It confirmed an existing one.
28 Murphy J. who concluded that it did not at all and Mason J. who concluded that none of the provisions relating to wrecks would apply. In both cases these conclusions were the major premise in their decisions that s. 523 did not apply in this case.
29 (1978) 16 A.L.R. 623, 646-647. His Honour does not explain why it should be the Crown in right of Western Australia rather than the Crown in right of the Commonwealth. One possible reason is that the Commonwealth did not exist when s. 523 was enacted whilst Western Australia did. This, however, comes up against the difficulty that the prerogative right pre-dates the State of Western Australia (n. 27 supra).
30 Id. 665.
31 Id. 672-673. In fact, his Honour does not actually state this but it appears a necessary consequence of the way his judgment is set out in that once he says that the Navigation Act has similar provisions in Australia he simply goes on to discuss the consistency of the Navigation Act and the State legislation.
32 Colonial Laws Validity Act 1865, s. 2 (Imp.). This matter was dealt with in the case Union Steamship Company of New Zealand Ltd v. The Commonwealth (1925) 36 C.L.R. 130. For a general discussion of the applicability of the Colonial Laws Validity Act see Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 61-65.
33 In Australia this was 3 September 1939.
34 (1978) 16 A.L.R. 623, 674.
35 (1976) 11 A.L.R. 129, 139.
36 (1977) 11 Melbourne University Law Review 128.
37 Ex parte McLean (1930) 43 C.L.R. 472.
38 (1978) 16 A.LR. 623 Gibbs J. 649; Mason J. 668-669. Gibbs J. relied on Victoria v. The Commonwealth (1937) 58 C.L.R. 618 in which the High Court could find no inconsistency between Victorian and Commonwealth legislation that dealt with the removal of wrecks on or near the coast.
39 Id. 673.
40 Id. 674.
41 (1976) 9 A.L.R. 289.
42 (1978) 16 A.L.R. 623, 644-646.
43 Id. 669.
44 Id. 672.
45 Id. 674.
46 No member of the court dealt specifically with the question of what “sovereignty” entails.