WAS IT A FAIR FIGHT?
FIGHTING for THE LEGAL RIGHT
ALLAN ROBINSON & THE GILT DRAGON TREASURE
FIGHTING for THE LEGAL RIGHT
ALLAN ROBINSON & THE GILT DRAGON TREASURE
ABOVE: BELIEVED TO BE GENUINE 17th APRIL 1963
ALLAN ROBINSON'S REPORT TO THE WA RECEIVER OF WRECKS
Allan Robinson had the legal right to salvage the Gilt Dragon's treasure
ALLAN ROBINSON'S REPORT TO THE WA RECEIVER OF WRECKS
Allan Robinson had the legal right to salvage the Gilt Dragon's treasure
#Allegations, #murder, #detonate, #explosives, #Court, #Acquitted, #Accused, #Prison, Police, Judge, #Innocent, Cell, #Infamous, #VOC1656, #TreasureHunter, #GiltDragon, #VerguldeDraeck, #WesternAustralia, #BallastBricks, #SilverCoins, #AllanRobinson
The courts found Allan Robinson innocent, yet the gullible and the guilty, continue to hurl abuse at him. Books, videos, lectures and Government documents about the shipwrecks of Western Australia, are still produced with libellous comments about Allan Robinson. In perpetuating these slanderous untruths, one shows a total lack of respect, not only for the late Allan Robinson and his remaining family, but also for our judicial system.
Allan Robinson was acquitted of all the charges laid against him.
It is time to look at the facts as the court found them: ‘1973 Allan Robinson versus Western Australian Museum ALLAN ROBINSON VINDICATED
http://classic.austlii.edu.au/au/journals/FedLawRw/1978/15.pdf
Rex Woodmore.
Email Rex Woodmore: [email protected]
IN MY OPINION
Allan Robinson had the legal rights to the salvage of the 1656 Gilt Dragon Treasure!
Rex Woodmore [email protected]
Before the legislation was changed Allan Robinson, working within the existing laws, was already salvaging material from the wreck of the Gilt Dragon, so when they changed the laws to stop him [Like moving the goal posts to win the game] he had a moral & legal right to challenge their right to make it an offence for him to continue removing treasure & artefacts from the wreck of the Gilt Dragon.
1973 The court agreed that Allan Robinson had the legal right to a batch of confiscated coins from the Gilt Dragon and orders the CIB to return them to him. In 1973 worth $50.000 (In WA he could have bought two suburban houses for that much) In 2021, these 2,500 Gilt Dragon coins could be worth well over a couple of $million.
BALLAST BRICKS
Found dumped in a local rubbish tip!
WHO DUMPED THE BALLAST BRICKS!
When loads of ballast bricks identified as from the Gilt Dragon were found in a local government tip, they tried to pin it on Allan Robinson! If one is tempted to think Allan Robinson might have dumped the bricks after breaking open the conglomeration & removing coins from them, then I point out that the rubbish tip was a long way from Allan’s home in Grand Promenade Morley & I know for a fact that Allan saw value in each complete brick, so would not have throw them out. In fact Allan Robinson even valued the limestone rubble that came off the bricks and he had his driveway to his garage made of it! (I saw it and drove my Mini car on it!)
ALLAN ROBINSON'S DRIVEWAY PAVED IN SILVER
"Well almost"
As for the left over broken bits & pieces that formed quite a pile in Allan Robinson's yard, he contracted two men to make a driveway to his shed with it! Allan told me that early one morning he showed the contractors what he wanted & jokingly said to them
“If you look hard enough, you might find a silver coin or two that I missed in it” Then he left them to it and drove off.
“If you look hard enough, you might find a silver coin or two that I missed in it” Then he left them to it and drove off.
Later in the day when he got home expecting to see a new driveway, all he saw were two men digging through the pile, looking very pleased with their find of three Gilt Dragon coins.
( They didn’t even get wet & risk their lives in retrieving their treasure). |
AT ALLAN ROBINSON'S HOUSE
Coins by the bucket load!
There were wooden workbenches on either side and on each bench was a plastic bucket full of coins soaking in dilute hydrochloric acid, to dissolve the rust and limestone coating on them. We were amazed at the lack of security. Anyone could have walked in from the footpath and helped themselves to perhaps 200 or more solid silver coins (pieces of eight, four & two) worth (even in those days) thousands of dollars. To put it into context, my car cost me 753 pounds or $1506. I probably could have bought at least 3 minis with the contents of those buckets). No one was home & we drove off leaving Allan’s pile of coins just as we had found them. When I told Allan about our visit and the tempting stash of coins, he just grinned and said "There are plenty more where they came from”
NOTE: in 2019 those coins would be worth $100.000
NOTE: in 2019 those coins would be worth $100.000
BIO OF TREASURE HUNTER
ALLAN ROBINSON
FROM THE AUSTRALIAN DICTIONARY OF BIOGRAPHY Robinson, Ellis Alfred 'Alan' or 'Allan') (1927–1983) by G. C. Bolton The Australian Dictionary of Biography is Australia's pre-eminent dictionary of national biography. In it you will find concise, informative and fascinating descriptions of the lives of significant and representative persons in Australian history.
The ADB is produced by the National Centre of Biography at the Australian National University.
GILT DRAGON TREASURE HUNTER
ALLAN ROBINSON ACCUSED.
Gilt Dragon Treasure Hunter, Allan Robinson (54) and his de facto wife Patricia Green (23) faced ridiculous and unlikely allegations of a murderous plan to detonate explosives in cars full of nuts & bolts.
TREASURE HUNTER ALLAN ROBINSON
FOUND HANGED
Gilt Dragon Treasure Hunter, Allan Robinson (54) and his de facto wife Patricia Green (23) where charged with conspiracy to murder, the result in the court case was that Patricia Green was found not guilty.
But death robbed Allan Robinson of his last day in court, when he too was expected to be found innocent.
At 7.30 am, when Patricia Green was acquitted, the jury was informed Allan Robinson had been found hanged in his cell, less than an hour before, at 6.25am.
But death robbed Allan Robinson of his last day in court, when he too was expected to be found innocent.
At 7.30 am, when Patricia Green was acquitted, the jury was informed Allan Robinson had been found hanged in his cell, less than an hour before, at 6.25am.
As I say on the first page of this website: Consider the information presented herein to be as reliable (or as unreliable) as stories, legends & myths told around a flickering campfire.
CONSPIRACY THEORIES
NOTE: Some years after this event, a Barrister (not directly associated with the case) told me that he and his colleagues believed that after Patricia Green’s acquittal, Allan Robinson, had he been alive to face court for his last appearance, would also have been pronounced by the jurors as ‘’Not guilty”. Rex Woodmore 2014
( I often wonder who ''THEY" are (?) 'They' get blamed for all sorts of things!)
The conspiracy theorists went into overdrive, with comments like:
They were out to get him!”… “Don’t mess with the authorities”… ’’He wouldn't back down with his claim of salvage rights over the wreck of the Gilt Dragon”… “People in high places have stolen silver coins from the wreck’’… ”They tried to get him with lots of other charges and every time he was acquitted”… “The only thing they ever got him on was a parking fine’’…’’It was a vendetta’’ … ‘They charged him with having stolen gelignite – he showed them permits and receipts’’… ‘’In Perth, he usually didn't get parking tickets, because he would slip the parking attendants the occasional shipwreck coin”… ‘’Who got the gold?’’ … “The archaeologists have not reported any gold?’’… ‘’He was bumped off to shut him up’’… ‘’He knew too much’’… ‘’A senior politician has stolen Gilt Dragon cannon in his backyard’’ …”He was ‘stitched up’ by the big boys”… “Suicide? A strange way for Allan Robinson to celebrate the imminent declaration of his innocence”…“Murder? The only way out to silence Allan Robinson forever?”…’’He found a secret base in the desert with rusting, tanks & valuable military equipment’’…. ‘’He found another shipwreck that the Government don’t want us to know about’’…''THey charged him with stealing a ballast brick''..."Then they dumped hundreds of Gilt Dragon ballast brinks in a local Shire rubbish tip’’….....................
“He said, she said - who can you believe?’’
( I often wonder who ''THEY" are (?) 'They' get blamed for all sorts of things!)
The conspiracy theorists went into overdrive, with comments like:
They were out to get him!”… “Don’t mess with the authorities”… ’’He wouldn't back down with his claim of salvage rights over the wreck of the Gilt Dragon”… “People in high places have stolen silver coins from the wreck’’… ”They tried to get him with lots of other charges and every time he was acquitted”… “The only thing they ever got him on was a parking fine’’…’’It was a vendetta’’ … ‘They charged him with having stolen gelignite – he showed them permits and receipts’’… ‘’In Perth, he usually didn't get parking tickets, because he would slip the parking attendants the occasional shipwreck coin”… ‘’Who got the gold?’’ … “The archaeologists have not reported any gold?’’… ‘’He was bumped off to shut him up’’… ‘’He knew too much’’… ‘’A senior politician has stolen Gilt Dragon cannon in his backyard’’ …”He was ‘stitched up’ by the big boys”… “Suicide? A strange way for Allan Robinson to celebrate the imminent declaration of his innocence”…“Murder? The only way out to silence Allan Robinson forever?”…’’He found a secret base in the desert with rusting, tanks & valuable military equipment’’…. ‘’He found another shipwreck that the Government don’t want us to know about’’…''THey charged him with stealing a ballast brick''..."Then they dumped hundreds of Gilt Dragon ballast brinks in a local Shire rubbish tip’’….....................
“He said, she said - who can you believe?’’
ALLAN ROBINSON SHIPWRECK EXPLORER
FOUND HANGED IN PRISON CELL
The Sydney Morning Herald November 3, 1983
DEATH ROBS ROBINSON
OF HIS LAST DAY IN BIZARRE COURT CASE
YOU MIGHT ASK WHAT I THINK
ABOUT ALLAN ROBINSON
I knew Allan very well. He was, for me, a likeable rogue. He was one of my diving instructors in the Underwater Explorers Club (U.E.C.WA)
He was the man who enthralled me with stories of his adventures and the adventures of others. He would often quote from research he had done on the adventures of the infamous Bully Hayes.
He was the man who enthralled me with stories of his adventures and the adventures of others. He would often quote from research he had done on the adventures of the infamous Bully Hayes.
I have my ideas and I have a sense of loyalty to Allan Robinson.
I do not indorse the comments made by the many conspiracy theorists.
Allan Robinson was not only partly responsible for my diver training, but he was like a protective Uncle to me. I have been in the water when he used explosives (not on the Gilt Dragon) & was quite safe. He was by my side when a shark ‘sniffed’’ at my bleeding legs and he saved my life when I almost drowned on the wreck of the Gilt Dragon.
I knew and liked the Robinson family (Not the Swiss family Robinson but the Morley Drive, Dianella, Western Australia, family Robinson) I dined with him and his lovely first wife (who was Grace by name and grace by nature). I remember two daughters & one was about 12 years old (?) and a tough little boy of about 6 (?) the image of his Dad, with prickly crew cut hair.
I nicknamed him ‘Butch’ and from then on Allan often referred to him by that name. Sadly, years later, I heard that ‘Butch’ as a young man, was killed in a Motorbike accident.
I do not indorse the comments made by the many conspiracy theorists.
Allan Robinson was not only partly responsible for my diver training, but he was like a protective Uncle to me. I have been in the water when he used explosives (not on the Gilt Dragon) & was quite safe. He was by my side when a shark ‘sniffed’’ at my bleeding legs and he saved my life when I almost drowned on the wreck of the Gilt Dragon.
I knew and liked the Robinson family (Not the Swiss family Robinson but the Morley Drive, Dianella, Western Australia, family Robinson) I dined with him and his lovely first wife (who was Grace by name and grace by nature). I remember two daughters & one was about 12 years old (?) and a tough little boy of about 6 (?) the image of his Dad, with prickly crew cut hair.
I nicknamed him ‘Butch’ and from then on Allan often referred to him by that name. Sadly, years later, I heard that ‘Butch’ as a young man, was killed in a Motorbike accident.
A TWO YEAR GAP IN THE ARMY
I LOST TRACK OF SHIPWRECK BUSINESS.
I was called up into the Army,During the war in Vietnam. Apart from a couple of letters from Allan to me in Adelaide, we lost contact and for two years I knew little of what was going on in regards to shipwrecks and fights over treasure in Western Australia or anywhere else for that matter.
I did not go overseas.The only action I saw, was as a cook in the Sergeant’s Mess, when I burnt the Regimental Sergeant Major's toast!
It was not until I was discharged from the army and returned to WA, that I met Allan at an Underwater Explorers display in the Perth town hall.
There was quite a crowd gathered around us and I was made to feel quite important, when in a loud voice Allan Robinson offered me a job with his ‘Underwater Salvage Team’.
I did not go overseas.The only action I saw, was as a cook in the Sergeant’s Mess, when I burnt the Regimental Sergeant Major's toast!
It was not until I was discharged from the army and returned to WA, that I met Allan at an Underwater Explorers display in the Perth town hall.
There was quite a crowd gathered around us and I was made to feel quite important, when in a loud voice Allan Robinson offered me a job with his ‘Underwater Salvage Team’.
s tempted as I was to accept, a small quiet voice encouraged me to say ‘’No!’’ He simply grinned, reached into a display case and presented a Gilt Dragon coin as a welcome home present
(Later the coin with several others, was stolen during a burglary on my home).
(Later the coin with several others, was stolen during a burglary on my home).
WHAT MIGHT HAVE BEEN
I often wonder what might have been, had I accepted Allan Robinson's offer of a job as an Underwater Salvage diver and I also remember clearly how, one day in the Robinson’s home, Allan’s wife Grace, while holding a stoneware jug from the Gilt Dragon, quietly confided in me:‘’Allan would give his life for the wreck”
...AND ROBINSON DID GIVE HIS LIFE FOR THE WRECK!
...AND ROBINSON DID GIVE HIS LIFE FOR THE WRECK!
TREASURE IS NOT FOR THE FINDER
Book by Allan Robinson
The book by the late Allan Robinson.
I bumped into Allan in Rockeby Road Subiaco, he was just about to get into his car.I hadn't seen him for years. We shook hands & he seemed very happy with life. He told me it was his Birthday. I wished him happy birthday and jokingly apologised for not having a present.
He laughed & said "No, but I have something for you"
He opened the boot of his car to reveal a bundle of books.
He cut the string on the bundle,autographed one & handed me a copy of his new book (hot off the press) In Australia 'Treasure is not for the Finder'
That was the last time I saw the infamous Ellis Alfred Robinson (Alias Allan or Alan) I was saddened to hear how he ended his adventurous life (Hanging in an Australian prison cell). To me Allan was like a generous and kind Uncle to whom I owe my life. The least I can do is speak up and defend his memory.
1973 ALLAN ROBINSON VERSUS
Western Australian Museum
ALLAN ROBINSON VINDICATED
CASE NOTE
ROBINSON v. THE WESTERN AUSTRALIAN MUSEUM1
Constitutional law - Legislative power of a State - Applicability 0/
Imperial legislation - The Seas and Submerged Lands Act 1973 (Cth)
- Navigation Act 1912 (Cth) -Locus standi.
A number of issues, "constitutional" and otherwise, arose in the
consideration of this case by the High Court. Perhaps the area that will
be regarded as being of most general importance will be that of locus
standi, although the discussion of the limits of the legislative power of
the State of Western Australia will also be of interest.
Robinson, a citizen of Western Australia, located the remains of the
Dutch ship the "Gilt Dragon" which sank in about 1656 on the sea-bed
north of Perth and within three miles of the Western Australian coast.
In 1957 he gave notice of his discovery to the Commonwealth Receiver
of Wrecks in Freemantle and claimed an interest as finder. He gave
such a notice again in 1963, having been unable to relocate the wreck
in the intervening years. These notices were given pursuant to the
Navigation Act 1912 (Cth) ("the Navigation Act"). Robinson recovered
various artefacts (including coins) from the wreck and submitted some
to the Receiver and some to the Western Australian Museum Board, a
statutory body established by the Museum Act 1959 (W.A.).
By a series of enactments, including the Museum Act Amendment
Act 1964 (W.A.),2 the Museum Act 1969 (W.A.) and the Maritime
Archaeology Act 1973 (W.A.) ("the Maritime Archaeology Act"), the
Western Australian legislature purported to vest property in historic
wrecks, including the "Gilt Dragon", and in relics associated with such
wrecks in the Western Australian Museum, the defendant, on behalf
of the Crown. Section 6 of the last-named Act went further and vested
property in "maritime archaeology sites"3 in the Museum. It became
an offence to alter or remove a ship or a site.4 No compensation was
payable as a result of this vesting. In pursuance of its powers the
Museum prevented the plaintiff from working on the wreck or taking
away or salvaging relics. It itself recovered items, which it retained,
and no compensation or reimbursement for his expenses was offered to
!~e plaintiff.
In 1974 Robinson commenced proceedings for declarations that the
various State Acts were invalid on one or more of three grounds:
(i) that they were beyond the legislative power of the State;
(ii) that they were repugnant to the Imperial Merchant Shipping Act
1894; and
1 (1978) 16 A.L.R. 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.
239
240 Federal Law Review [VOLUME 9
(iii) that they were inconsistent with the Navigation Act and the Seas
and Submerged Lands Act 1973 (Cth) ("the Seas and Submerged
Lands Act").
He also sought a declaration that the Museum's retention of relics
was not lawful, and certain injunctions. The defendant demurred on
the grounds that the facts as pleaded disclosed no cause of action, that
the plaintiff had no standing to sue and that the legislation was 'valid.
The Commonwealth (in support of the plaintiff) and various States (in
support of the defendant) intervened by leave.
Standing
There are a multiplicity of tests as to whether a plaintiff has standing
in an action in which he seeks a declaration. These range from a stern
insistence that he have "private rights" in' the matter in dispute to
asking whether the plaintiff is "more particularly affected than other
people".5 In recent years, perhaps, the latter and apparently less
restrictive test has gained in currency. In this case, where the matter
came to trial on a demurrer, there was no "evidence" on which the
court could base its decision. It therefore had to assume that the facts
pleaded were true and base its decision on those facts, without' the
benefit of a hearing which might have clarified the issues. ,A particular
result of this was that, in the view of most of the court, it was not
possible to form a final view on the nature of the plaintiff's rights with
respect to the wreck. Despite this, and with one dissenting voice,6 the
court found that the plaintiff had standing to maintain his suit.
Barwick C.J. disposed briefly of the question of standing. He said
that the plaintiff had located (and relocated) the wreck and had done
acts in possession of it.7 Consequently he was in a position to make a
credible claim for rights of salvage and this fact took him out of the
class of members of the public' generally. The judgment of Jacobs J.
reveals a basically similar approach, although he considered the
plaintiff's claim to salvage at more length.8
Stephen and Mason JJ. dealt with the question of whether the
plaintiff had a sustainable claim for salvage at some length. Mason J.
concluded that he had a claim that could be litigated and that he could
fit within the test for standing that he for~ulated as follows:
the plaintiff must be able to show that he will derive some benefjt
or advantage over and above that to be derived by the ordinary
citizen if the litigation ends in his favour.9
His Honour felt that, whilst the plaintiff may have had an alternative
remedy open to him, this only went to whether the court should
exercise its discretion to make a declaration, rather than to the question
of standing. Stephen J., however, concluded that the plaintiff had
disclosed on the pleadings no claim to salvage in the wreck and that as
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.
8Id. 672-673.
9Id. 661.
1978] Case Note 241
the legislation did not affect the relics he took from the wreck before it
commenced its operation, the plaintiff had no claim which could give
him standing. He therefore allowed the demurrer and did not consider
the other issues before the court.10
A similar attitude to that taken by Mason J. was taken by Gibbs J.ll
He said that as Robinson's claim to the wreck was more than merely
colourable the questions arising out of it should be considered. He had
a further ground for his conclusion that the plaintiff had standing.
Before the enactment of the legislation Robinson was working on the
wreck. The legislation made it an offence for him to continue to do so.
This gave him a right to challenge it.12 A further comment made by his
Honour may be cited in future. He said that the court has a discretion
to hear matter \vhere standing is in dispute and that in exercising that
discretion it is appropriate to take into consideration the fact that the
Commonwealth and various States had intervened to argue the case.
If the Chief Justice was able to deal with the question of standing
"briefly", Murphy J. was able to do so even more briefly. He relied
upon the following statement ~of the United States Supreme Court in
Baker v. Carr:
The gist of the question of standing [is whether the plaintiff has]
alleged such a personal stake in the outcome of the controversy as
to ensure that the concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions.13
It is not clear that this test is any easier to apply than the more
traditional formulations. Indeed, it is not clear what the test means in
practical terms. Moreover, to a significant degree, it goes against one
of the major reasons for the traditional common law court's reasons for
requiring a plaintiff to have some personal interest in the outcome-the
desire to resolve practical, rather than "academic or hypothetical",
questions14-insofar as it emphasises that interest as an· aid to problem
solving rather than as the reason for the embarkation on the problem
solving process. In the event, his Honour found that the plaintiff had
standing.
10Id. 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 B.R. 401.
11 (1978) 16 A.L.R. 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.
1:3 (1978) 16 A.L.R. 623, 675. Baker v. Carr (1961) 369 U.S. 186, 204.
14Id. 661 per Mason J.
242 Federal Law Review [VOLUME 9
The Competence of the Western Australian Legislature
The first ground of attack on the validity of the Acts that were under
challenge was that they were beyond the legislative competence of the
State Parliament. It was not disputed by the defendant that the sea-bed
on which the "Gilt Dragon" rested was not part of the State of Western
Australia.15 The question to be decided was therefore whether there
was a sufficient connection between the subject matter of the various
Acts and the interests of the State to allow the legislature the power to
endow them with an e~tra-territorial operation. In other words, were
they for the peace, order and good government of the State?16 On this
question the court divided evenly.
Gibbs and Mason JJ. were of the opinion that Western Australia had
legislative competence. Gibbs J. relied on his judgment in the case of
Pearce v. Florenca11 to decide that where the persons, things or events
to which the legislation applied "occurred" within the State's off-shore
territorial waters there was power to make laws with respect to those
persons, things or events. His Honour also stated that the wreck of the
"Gilt Dragon" is part of the history of Western Australia, that the
sailors who were her crew played a part in the States history and that
the preservation and display of the relics was therefore of legitimate
concern to the people of the State: If a third ground was needed to
sustain the legislative power, his Honour would have found it in the
need to regulate rights and maintain order in areas so close to the
territory of the State.1S Mason J. simply stated that there was a
sufficient connection between the legislation and the peace, order and
good government of the State, evidently relying on the analogy with
the power over fisheries and on the fact that the Act was designed to
preserve the relics "for the benefit of the State and its citizens".19 A
final item in support of the competence of the legislature is to be found
in the judgment of Stephen J. who, although he did not need to make
a decision on the point, said, in relation to the issue of competence
that "as at present advised, I would in any event be disposed to
determine in the defendant's favour". 20
Two of the remaining members of the court disagreed. Barwick C.J.
found the defendant's endeavour to show that the legislation was for
the peace, order and good government of the State "completely unconvincing".
The Dutch ship was not intent upon, or instrumental, in
discovering Australia. The wrecks were not historic, indeed:
15 Ct. the Seas and Submerged Lands Act case (New South Wales v. The Com..
monwealth (1975) 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.
19Id.664.
20Id.660.
1978] Case Note 243
Cook's cannon has . more relationship to the history of the
Australian colonies than did the activities of the Dutch East India
Company and the voyages and disasters of its fleet.21
Moreover, whilst the establishment and maintenance of the Western
Australian Museum was a matter for the peace, order and good government
of the State, giving it property in sites or wrecks off the coast
went much further than the promotion, of a museum, and was no1.22
Of the other members of the court Murphy J. (who felt that the
ownership of the remains of the wreck was incidental to national
sovereignty) simply asserted that there was no legislative competence2S
and Jacobs J., who did not need to decide this issue, did not pass upon it.
One matter does arise clearly out of this case in relation to legislative
competence. The Commonwealth Solicitor-General apparently argued
that no State could pass a law dealing with the sea-bed below its lowwater
mark. Mason J. explicitly rejected this contention24 and, in view
of their comments, it is evident that Gibbs and Stephen JJ. would also
have done so. The remarks of the Chief Justice show that he did not
subscribe to such a proposition (if he had, those remarks would not
have been necessary) and there is nothing in the judgment of Murphy J.
to support it. Whilst some assistance for the proposition put forward
by the Commonwealth might be gleaned from comments of Jacobs J.
in a slightly different context,25 it is submitted that it is now clear that
there is no absolute bar to State legislation relating to the sea-bed
within three miles of the State's low-water mark.2'6
The Merchant Shipping Act
The plaintiff argued that the various Western Australian Acts were
inconsistent with certain provisions of the Merchant Shipping Act. The
sections in question vested property in unclaimed wrecks in "Her
Majesty's dominions" in the Crown.27 The question for consideration
was therefore whether these sections operated to prevent the Western
Australian legislature making laws that dealt with such wrecks. Two
justices28 also considered whether the Merch~nt Shipping Act was
21Id. 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?
23Id.675.
24Id.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
244 Federal Law Review [VOLUME 9
capable of operating in Australian waters. Four members of the court
decided the primary question and three separate reasons were given for
reaching the answer "no".
Gibbs J. was prepared to assume that the section he saw as crucial,
section 523, operated in Australia to vest property in wrecks in the
"Crown". However, the "Crown" referred to must be taken to mean
the Crown in right of Western Australia. That Crown had a right to
dispose of its property and had done so (by the challenged legislation).29
An alternative approach was taken by Mason J. His Honour referred to
the Seas and Submerged Lands case to support the contention that
the bed of the sea beyond the low-water mark had never been part of
the State of Western Australia and never part of the Queen's dominions.
Consequently, the relevant provisions of the Merchant Shipping Act
did not apply and there could be no question arising as to inconsistency
with the various State Acts.30 A third approach was taken by Jacobs J.
who said that the various provisions of the Navigation Act are analogous
to those of the Merchant Shipping Act under discussion. He held that
the former took precedence over the latter in these circumstances.31
The legal reasoning that his Honour adopted to lead himself to this
conclusion is not clear. If he is saying that the two acts are inconsistent
and that therefore the 1912 Commonwealth Act takes precedence
over an earlier Imperial Act of general application, it is respectfully
submitted that he is wrong. It is true that after the commencement of
the Statute of Westminster Adoption Act 1942 (Cth) the Commonwealth
could make laws repugnant to and taking precedence over
Imperial laws. However, it would appear that before that commencement
it could not do SO.82 Moreover, section 2 of the Statute of
Westminster only saves "colonial" legislation passed after the date
from which that section operates.33 Consequently, if parts of the
Navigation Act are inconsistent with provisions of the Merchant
Shipping Act, it is likely that those parts are bad and never became law.
Of course, his Honour may simply have been using an argument
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.
31Id. 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.
1978] Case Note 245
similar to that used by Gibbs J., and saying that the Navigation Act
merely deals with property that vests in the Crown pursuant to the
Merchant Shipping Act or otherwise.
Whichever of the above interpretations can properly be drawn from
the judgment of Jacobs J., Murphy J. quite clearly used the first argument
and held that section 523 of the Merchant Shipping Act was in
conflict with the Navigation Act and was consequently invalid in
Australian law.34 As discussed above, this view is probably wrong. It
evidently flows from an extension of his Honour's argument in Bistriclc
v. Rokov35 (where he held that amendments to the Merchant Shipping
Act passed by the United Kingdom legislature in the 1950s could not
affect the law applicable in the Australian States). The imperial Act
was part of the law governing a unified imperial colonial system and
Australia was no longer part of that system so that the Act was now
"inapplicable". However, even if that is true, it was not the case in
1912 and it is difficult to see how, in this area of law, a change in
circumstances could resurrect a previously invalid law. His Honour also
held that the section of the Merchant Shipping Act being dealt with
was inconsistent with the Seas and Submerged Lands Act and had no
effect in Australia. Unfortunately, he gave no reasons for this finding.
Indeed, his judgment as a whole appears again to be, in the words of
Pr<?fessor Howard, "a short statement of dogmatic conclusions unsupported
by reasoning".36
Inconsistency with Commonwealth Legislation
The final constitutional issue raised in the case was whether the
various State Acts, or part of them, were inconsistent with the
Navigation Act or the Seas and Submerged Lands Act. If they were
inconsistent they were, by virtue of section 109 of the Constitution,
invalid to the extent of the inconsistency. As if to add to the general
difficulty in interpreting this case, two justices did not pass upon this
issue, two found no inconsistency (subject to a slight qualification
because of the judgment of Mason J.) and two held that the challenged
Western Australian legislation was inconsistent with the Commonwealth
legislation.
There are two parts of the generally accepted test for inconsistency.
The first is that the legislation will be inconsistent if the provisions of
the respective State and C'ommonwealth laws are incapable of being
simultaneously obeyed. The second is that they will be inconsistent if
one shows that it is intended "completely, exhaustively or exclusively"
to govern the field in which it operates and with respect to which the
other applies.37
Gibbs and Mason JJ. could find no inconsistency between the
challenged legislation and the Navigation Act. They both reviewed the
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.
246 Federal Law Review [VOLUME 9
latter and held that whilst some of its provisions would affect the wreck
of the "Gilt Dragon", none of them affected the vesting of property in
it. There was therefore no provisions incapable of simultaneous
obedience. Further, in their views, there was no intention shown that
the Commonwealth intended to govern the field dealt with in the
Western Australian legislation.38 Jacobs J. noted that the relevant
provisions of the Navigation Act were such that if no "owner" established
a claim to the wreck the Receiver of Wrecks should sell it, pay
the salvor an appropriate amount and pay the balance into Commonwealth
funds. His Honour felt that these provisions laid down procedures
and gave rights to various persons and to the Commonwealth which
were not consistent with the State legislation.3D Murphy J. asserted that
there was an inconsistency without going into any reasoning.40
On the question of the operation of the Seas and Submerged Lands
Act, the crucial consideration was whether the fact that the Act vested
sovereign rights in the Commonwealth with respect to the sea-bed on
which the "Gilt Dragon" was lying prevented the State from legislating
to dispose of the property in the wreck. Section 16(b) of the lastnamed
Act saved all State laws except those that were expressed to "vest or
make exercisable any sovereignty or sovereign rights" in the sea-bed.
The Act did not define sovereignty or list the sovereign rights referred to.
Gibbs J. took the view that the purpose of section 16(b) is to save
all State Acts save those that expressly assert sovereignty contrary to
the Commonwealth's claim. He then cited Pearce v. Florencat1 to
show that a State law can still operate to allow confiscation of property
of people in off-shore waters where the Commonwealth has sovereignty.
The implication that he made was that the fact that a State law
operates to effect an entitlement to property is not in itself an asserti~n
of sovereignty or sovereign rights. There was therefore no inconsistency
in relation to the provisions that dealt with property in the wreck.
Moreover, he was not prepared to recognize a distinction between
personal and real property in this context so that he held that part of
the Maritime Archaeology Act that dealt with maritime archaeological
sites to be also valid.42 In the former, but not in the latter, view he was
followed by Mason J. His Honour was clear that the Seas and Submerged
Land~ Act did not vest any proprietary rights in the sea-bed in
the Commonwealth. He could see no inconsistency between that Act
and the parts of the Western Australian legislation that related to
property in wrecks. However, the same was not the case with maritime
archaeology sites that were actually part of the sea-bed. He held that
the sea-bed cannot be conveyed by State legislation.43 Jacobs J. extended
S8 (1978) 16 A.L.R. 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.
89ld.673.
40 ld. 674.
41 (1976) 9 A.L.R. 289.
42 (1978) 16 A.L.R. 623, 644-646.
431d. 669.
1978] Case Note 247
this last point. He held that dominion was an incident of sovereignty
and that where the wreck of a ship was in the area covered by the Seas
and Submerged Lands Act to deal with it is to affect dominion and
deny the sovereignty of the Commonwealth. Therefore that part of
the challenged legislation that related to vesting property in wrecks or
sites was invalid.44 Murphy J. simply stated that the relevant State
provisions were invalid.45
It would appear that the approach adopted by Gibbs and Mason JJ.
as to inconsistency is more in keeping with the authority on that area
than is that of Jacobs J. (and presumably Murphy J.). Their Honours
are evidently concerned to apply strictly the tests that have been
developed. In particular, they were concerned not to read too widely
the provisions of the Seas and Submerged Lands Act which, in view of
the saving nature of section 16(b), seems to give effect to the intention
of the legislature. In the absence of authority as to the meaning of the
word "sovereignty" they were clearly not prepared to hold that simply
because a State law dealt with property rights it was claiming
sovereignty.46
Conclusion
In the event, Barwick C.J. and Jacobs and Murphy JJ. indicated that
the demurrer should be overruled so that there was a statutory majority
(because of the Chief Justice's casting vote) over the dissent of Gibbs,
Stephen and Mason JJ. Much of the discussion can already be regarded
as academic because the Commonwealth has now legislated to cover
much of the matters dealt with in the State Acts by its Historic Shipwrecks
Act 1976 (which was passed after this action commenced).
The interest that remains in the case is to be found in the ways that
the various judges approached it. Attention has already been drawn to
significance of the discussion of locus standi and the powers of a State
legislature. The approach to the question of inconsistency illustrates
certain divisions and perhaps presages some more definitive discussion
of this area of constitutional law in the future. No doubt we will also
soon see another judge take up Murphy J.'s provocative comments as
to the nature of the relationship between Australia and the United
Kingdom. The case might also be seen by some as illustrating, in the
composition of the majority and the minority (notwithstanding the
concurrence of Barwick C.J. and Murphy J.), some of the ideological
influences at work in determining the decisions of the present High
Court.
ALLAN MURRAY-Jo~ES*
44 Id. 672.
45 Id. 674.
46 No member of the court dealt specifically with the question of what
"sovereignty" entails.
* B.Ec., LL.B. (Hons.).
CASE NOTE
ROBINSON v. THE WESTERN AUSTRALIAN MUSEUM1
Constitutional law - Legislative power of a State - Applicability 0/
Imperial legislation - The Seas and Submerged Lands Act 1973 (Cth)
- Navigation Act 1912 (Cth) -Locus standi.
A number of issues, "constitutional" and otherwise, arose in the
consideration of this case by the High Court. Perhaps the area that will
be regarded as being of most general importance will be that of locus
standi, although the discussion of the limits of the legislative power of
the State of Western Australia will also be of interest.
Robinson, a citizen of Western Australia, located the remains of the
Dutch ship the "Gilt Dragon" which sank in about 1656 on the sea-bed
north of Perth and within three miles of the Western Australian coast.
In 1957 he gave notice of his discovery to the Commonwealth Receiver
of Wrecks in Freemantle and claimed an interest as finder. He gave
such a notice again in 1963, having been unable to relocate the wreck
in the intervening years. These notices were given pursuant to the
Navigation Act 1912 (Cth) ("the Navigation Act"). Robinson recovered
various artefacts (including coins) from the wreck and submitted some
to the Receiver and some to the Western Australian Museum Board, a
statutory body established by the Museum Act 1959 (W.A.).
By a series of enactments, including the Museum Act Amendment
Act 1964 (W.A.),2 the Museum Act 1969 (W.A.) and the Maritime
Archaeology Act 1973 (W.A.) ("the Maritime Archaeology Act"), the
Western Australian legislature purported to vest property in historic
wrecks, including the "Gilt Dragon", and in relics associated with such
wrecks in the Western Australian Museum, the defendant, on behalf
of the Crown. Section 6 of the last-named Act went further and vested
property in "maritime archaeology sites"3 in the Museum. It became
an offence to alter or remove a ship or a site.4 No compensation was
payable as a result of this vesting. In pursuance of its powers the
Museum prevented the plaintiff from working on the wreck or taking
away or salvaging relics. It itself recovered items, which it retained,
and no compensation or reimbursement for his expenses was offered to
!~e plaintiff.
In 1974 Robinson commenced proceedings for declarations that the
various State Acts were invalid on one or more of three grounds:
(i) that they were beyond the legislative power of the State;
(ii) that they were repugnant to the Imperial Merchant Shipping Act
1894; and
1 (1978) 16 A.L.R. 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.
239
240 Federal Law Review [VOLUME 9
(iii) that they were inconsistent with the Navigation Act and the Seas
and Submerged Lands Act 1973 (Cth) ("the Seas and Submerged
Lands Act").
He also sought a declaration that the Museum's retention of relics
was not lawful, and certain injunctions. The defendant demurred on
the grounds that the facts as pleaded disclosed no cause of action, that
the plaintiff had no standing to sue and that the legislation was 'valid.
The Commonwealth (in support of the plaintiff) and various States (in
support of the defendant) intervened by leave.
Standing
There are a multiplicity of tests as to whether a plaintiff has standing
in an action in which he seeks a declaration. These range from a stern
insistence that he have "private rights" in' the matter in dispute to
asking whether the plaintiff is "more particularly affected than other
people".5 In recent years, perhaps, the latter and apparently less
restrictive test has gained in currency. In this case, where the matter
came to trial on a demurrer, there was no "evidence" on which the
court could base its decision. It therefore had to assume that the facts
pleaded were true and base its decision on those facts, without' the
benefit of a hearing which might have clarified the issues. ,A particular
result of this was that, in the view of most of the court, it was not
possible to form a final view on the nature of the plaintiff's rights with
respect to the wreck. Despite this, and with one dissenting voice,6 the
court found that the plaintiff had standing to maintain his suit.
Barwick C.J. disposed briefly of the question of standing. He said
that the plaintiff had located (and relocated) the wreck and had done
acts in possession of it.7 Consequently he was in a position to make a
credible claim for rights of salvage and this fact took him out of the
class of members of the public' generally. The judgment of Jacobs J.
reveals a basically similar approach, although he considered the
plaintiff's claim to salvage at more length.8
Stephen and Mason JJ. dealt with the question of whether the
plaintiff had a sustainable claim for salvage at some length. Mason J.
concluded that he had a claim that could be litigated and that he could
fit within the test for standing that he for~ulated as follows:
the plaintiff must be able to show that he will derive some benefjt
or advantage over and above that to be derived by the ordinary
citizen if the litigation ends in his favour.9
His Honour felt that, whilst the plaintiff may have had an alternative
remedy open to him, this only went to whether the court should
exercise its discretion to make a declaration, rather than to the question
of standing. Stephen J., however, concluded that the plaintiff had
disclosed on the pleadings no claim to salvage in the wreck and that as
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.
8Id. 672-673.
9Id. 661.
1978] Case Note 241
the legislation did not affect the relics he took from the wreck before it
commenced its operation, the plaintiff had no claim which could give
him standing. He therefore allowed the demurrer and did not consider
the other issues before the court.10
A similar attitude to that taken by Mason J. was taken by Gibbs J.ll
He said that as Robinson's claim to the wreck was more than merely
colourable the questions arising out of it should be considered. He had
a further ground for his conclusion that the plaintiff had standing.
Before the enactment of the legislation Robinson was working on the
wreck. The legislation made it an offence for him to continue to do so.
This gave him a right to challenge it.12 A further comment made by his
Honour may be cited in future. He said that the court has a discretion
to hear matter \vhere standing is in dispute and that in exercising that
discretion it is appropriate to take into consideration the fact that the
Commonwealth and various States had intervened to argue the case.
If the Chief Justice was able to deal with the question of standing
"briefly", Murphy J. was able to do so even more briefly. He relied
upon the following statement ~of the United States Supreme Court in
Baker v. Carr:
The gist of the question of standing [is whether the plaintiff has]
alleged such a personal stake in the outcome of the controversy as
to ensure that the concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions.13
It is not clear that this test is any easier to apply than the more
traditional formulations. Indeed, it is not clear what the test means in
practical terms. Moreover, to a significant degree, it goes against one
of the major reasons for the traditional common law court's reasons for
requiring a plaintiff to have some personal interest in the outcome-the
desire to resolve practical, rather than "academic or hypothetical",
questions14-insofar as it emphasises that interest as an· aid to problem
solving rather than as the reason for the embarkation on the problem
solving process. In the event, his Honour found that the plaintiff had
standing.
10Id. 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 B.R. 401.
11 (1978) 16 A.L.R. 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.
1:3 (1978) 16 A.L.R. 623, 675. Baker v. Carr (1961) 369 U.S. 186, 204.
14Id. 661 per Mason J.
242 Federal Law Review [VOLUME 9
The Competence of the Western Australian Legislature
The first ground of attack on the validity of the Acts that were under
challenge was that they were beyond the legislative competence of the
State Parliament. It was not disputed by the defendant that the sea-bed
on which the "Gilt Dragon" rested was not part of the State of Western
Australia.15 The question to be decided was therefore whether there
was a sufficient connection between the subject matter of the various
Acts and the interests of the State to allow the legislature the power to
endow them with an e~tra-territorial operation. In other words, were
they for the peace, order and good government of the State?16 On this
question the court divided evenly.
Gibbs and Mason JJ. were of the opinion that Western Australia had
legislative competence. Gibbs J. relied on his judgment in the case of
Pearce v. Florenca11 to decide that where the persons, things or events
to which the legislation applied "occurred" within the State's off-shore
territorial waters there was power to make laws with respect to those
persons, things or events. His Honour also stated that the wreck of the
"Gilt Dragon" is part of the history of Western Australia, that the
sailors who were her crew played a part in the States history and that
the preservation and display of the relics was therefore of legitimate
concern to the people of the State: If a third ground was needed to
sustain the legislative power, his Honour would have found it in the
need to regulate rights and maintain order in areas so close to the
territory of the State.1S Mason J. simply stated that there was a
sufficient connection between the legislation and the peace, order and
good government of the State, evidently relying on the analogy with
the power over fisheries and on the fact that the Act was designed to
preserve the relics "for the benefit of the State and its citizens".19 A
final item in support of the competence of the legislature is to be found
in the judgment of Stephen J. who, although he did not need to make
a decision on the point, said, in relation to the issue of competence
that "as at present advised, I would in any event be disposed to
determine in the defendant's favour". 20
Two of the remaining members of the court disagreed. Barwick C.J.
found the defendant's endeavour to show that the legislation was for
the peace, order and good government of the State "completely unconvincing".
The Dutch ship was not intent upon, or instrumental, in
discovering Australia. The wrecks were not historic, indeed:
15 Ct. the Seas and Submerged Lands Act case (New South Wales v. The Com..
monwealth (1975) 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.
19Id.664.
20Id.660.
1978] Case Note 243
Cook's cannon has . more relationship to the history of the
Australian colonies than did the activities of the Dutch East India
Company and the voyages and disasters of its fleet.21
Moreover, whilst the establishment and maintenance of the Western
Australian Museum was a matter for the peace, order and good government
of the State, giving it property in sites or wrecks off the coast
went much further than the promotion, of a museum, and was no1.22
Of the other members of the court Murphy J. (who felt that the
ownership of the remains of the wreck was incidental to national
sovereignty) simply asserted that there was no legislative competence2S
and Jacobs J., who did not need to decide this issue, did not pass upon it.
One matter does arise clearly out of this case in relation to legislative
competence. The Commonwealth Solicitor-General apparently argued
that no State could pass a law dealing with the sea-bed below its lowwater
mark. Mason J. explicitly rejected this contention24 and, in view
of their comments, it is evident that Gibbs and Stephen JJ. would also
have done so. The remarks of the Chief Justice show that he did not
subscribe to such a proposition (if he had, those remarks would not
have been necessary) and there is nothing in the judgment of Murphy J.
to support it. Whilst some assistance for the proposition put forward
by the Commonwealth might be gleaned from comments of Jacobs J.
in a slightly different context,25 it is submitted that it is now clear that
there is no absolute bar to State legislation relating to the sea-bed
within three miles of the State's low-water mark.2'6
The Merchant Shipping Act
The plaintiff argued that the various Western Australian Acts were
inconsistent with certain provisions of the Merchant Shipping Act. The
sections in question vested property in unclaimed wrecks in "Her
Majesty's dominions" in the Crown.27 The question for consideration
was therefore whether these sections operated to prevent the Western
Australian legislature making laws that dealt with such wrecks. Two
justices28 also considered whether the Merch~nt Shipping Act was
21Id. 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?
23Id.675.
24Id.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
244 Federal Law Review [VOLUME 9
capable of operating in Australian waters. Four members of the court
decided the primary question and three separate reasons were given for
reaching the answer "no".
Gibbs J. was prepared to assume that the section he saw as crucial,
section 523, operated in Australia to vest property in wrecks in the
"Crown". However, the "Crown" referred to must be taken to mean
the Crown in right of Western Australia. That Crown had a right to
dispose of its property and had done so (by the challenged legislation).29
An alternative approach was taken by Mason J. His Honour referred to
the Seas and Submerged Lands case to support the contention that
the bed of the sea beyond the low-water mark had never been part of
the State of Western Australia and never part of the Queen's dominions.
Consequently, the relevant provisions of the Merchant Shipping Act
did not apply and there could be no question arising as to inconsistency
with the various State Acts.30 A third approach was taken by Jacobs J.
who said that the various provisions of the Navigation Act are analogous
to those of the Merchant Shipping Act under discussion. He held that
the former took precedence over the latter in these circumstances.31
The legal reasoning that his Honour adopted to lead himself to this
conclusion is not clear. If he is saying that the two acts are inconsistent
and that therefore the 1912 Commonwealth Act takes precedence
over an earlier Imperial Act of general application, it is respectfully
submitted that he is wrong. It is true that after the commencement of
the Statute of Westminster Adoption Act 1942 (Cth) the Commonwealth
could make laws repugnant to and taking precedence over
Imperial laws. However, it would appear that before that commencement
it could not do SO.82 Moreover, section 2 of the Statute of
Westminster only saves "colonial" legislation passed after the date
from which that section operates.33 Consequently, if parts of the
Navigation Act are inconsistent with provisions of the Merchant
Shipping Act, it is likely that those parts are bad and never became law.
Of course, his Honour may simply have been using an argument
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.
31Id. 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.
1978] Case Note 245
similar to that used by Gibbs J., and saying that the Navigation Act
merely deals with property that vests in the Crown pursuant to the
Merchant Shipping Act or otherwise.
Whichever of the above interpretations can properly be drawn from
the judgment of Jacobs J., Murphy J. quite clearly used the first argument
and held that section 523 of the Merchant Shipping Act was in
conflict with the Navigation Act and was consequently invalid in
Australian law.34 As discussed above, this view is probably wrong. It
evidently flows from an extension of his Honour's argument in Bistriclc
v. Rokov35 (where he held that amendments to the Merchant Shipping
Act passed by the United Kingdom legislature in the 1950s could not
affect the law applicable in the Australian States). The imperial Act
was part of the law governing a unified imperial colonial system and
Australia was no longer part of that system so that the Act was now
"inapplicable". However, even if that is true, it was not the case in
1912 and it is difficult to see how, in this area of law, a change in
circumstances could resurrect a previously invalid law. His Honour also
held that the section of the Merchant Shipping Act being dealt with
was inconsistent with the Seas and Submerged Lands Act and had no
effect in Australia. Unfortunately, he gave no reasons for this finding.
Indeed, his judgment as a whole appears again to be, in the words of
Pr<?fessor Howard, "a short statement of dogmatic conclusions unsupported
by reasoning".36
Inconsistency with Commonwealth Legislation
The final constitutional issue raised in the case was whether the
various State Acts, or part of them, were inconsistent with the
Navigation Act or the Seas and Submerged Lands Act. If they were
inconsistent they were, by virtue of section 109 of the Constitution,
invalid to the extent of the inconsistency. As if to add to the general
difficulty in interpreting this case, two justices did not pass upon this
issue, two found no inconsistency (subject to a slight qualification
because of the judgment of Mason J.) and two held that the challenged
Western Australian legislation was inconsistent with the Commonwealth
legislation.
There are two parts of the generally accepted test for inconsistency.
The first is that the legislation will be inconsistent if the provisions of
the respective State and C'ommonwealth laws are incapable of being
simultaneously obeyed. The second is that they will be inconsistent if
one shows that it is intended "completely, exhaustively or exclusively"
to govern the field in which it operates and with respect to which the
other applies.37
Gibbs and Mason JJ. could find no inconsistency between the
challenged legislation and the Navigation Act. They both reviewed the
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.
246 Federal Law Review [VOLUME 9
latter and held that whilst some of its provisions would affect the wreck
of the "Gilt Dragon", none of them affected the vesting of property in
it. There was therefore no provisions incapable of simultaneous
obedience. Further, in their views, there was no intention shown that
the Commonwealth intended to govern the field dealt with in the
Western Australian legislation.38 Jacobs J. noted that the relevant
provisions of the Navigation Act were such that if no "owner" established
a claim to the wreck the Receiver of Wrecks should sell it, pay
the salvor an appropriate amount and pay the balance into Commonwealth
funds. His Honour felt that these provisions laid down procedures
and gave rights to various persons and to the Commonwealth which
were not consistent with the State legislation.3D Murphy J. asserted that
there was an inconsistency without going into any reasoning.40
On the question of the operation of the Seas and Submerged Lands
Act, the crucial consideration was whether the fact that the Act vested
sovereign rights in the Commonwealth with respect to the sea-bed on
which the "Gilt Dragon" was lying prevented the State from legislating
to dispose of the property in the wreck. Section 16(b) of the lastnamed
Act saved all State laws except those that were expressed to "vest or
make exercisable any sovereignty or sovereign rights" in the sea-bed.
The Act did not define sovereignty or list the sovereign rights referred to.
Gibbs J. took the view that the purpose of section 16(b) is to save
all State Acts save those that expressly assert sovereignty contrary to
the Commonwealth's claim. He then cited Pearce v. Florencat1 to
show that a State law can still operate to allow confiscation of property
of people in off-shore waters where the Commonwealth has sovereignty.
The implication that he made was that the fact that a State law
operates to effect an entitlement to property is not in itself an asserti~n
of sovereignty or sovereign rights. There was therefore no inconsistency
in relation to the provisions that dealt with property in the wreck.
Moreover, he was not prepared to recognize a distinction between
personal and real property in this context so that he held that part of
the Maritime Archaeology Act that dealt with maritime archaeological
sites to be also valid.42 In the former, but not in the latter, view he was
followed by Mason J. His Honour was clear that the Seas and Submerged
Land~ Act did not vest any proprietary rights in the sea-bed in
the Commonwealth. He could see no inconsistency between that Act
and the parts of the Western Australian legislation that related to
property in wrecks. However, the same was not the case with maritime
archaeology sites that were actually part of the sea-bed. He held that
the sea-bed cannot be conveyed by State legislation.43 Jacobs J. extended
S8 (1978) 16 A.L.R. 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.
89ld.673.
40 ld. 674.
41 (1976) 9 A.L.R. 289.
42 (1978) 16 A.L.R. 623, 644-646.
431d. 669.
1978] Case Note 247
this last point. He held that dominion was an incident of sovereignty
and that where the wreck of a ship was in the area covered by the Seas
and Submerged Lands Act to deal with it is to affect dominion and
deny the sovereignty of the Commonwealth. Therefore that part of
the challenged legislation that related to vesting property in wrecks or
sites was invalid.44 Murphy J. simply stated that the relevant State
provisions were invalid.45
It would appear that the approach adopted by Gibbs and Mason JJ.
as to inconsistency is more in keeping with the authority on that area
than is that of Jacobs J. (and presumably Murphy J.). Their Honours
are evidently concerned to apply strictly the tests that have been
developed. In particular, they were concerned not to read too widely
the provisions of the Seas and Submerged Lands Act which, in view of
the saving nature of section 16(b), seems to give effect to the intention
of the legislature. In the absence of authority as to the meaning of the
word "sovereignty" they were clearly not prepared to hold that simply
because a State law dealt with property rights it was claiming
sovereignty.46
Conclusion
In the event, Barwick C.J. and Jacobs and Murphy JJ. indicated that
the demurrer should be overruled so that there was a statutory majority
(because of the Chief Justice's casting vote) over the dissent of Gibbs,
Stephen and Mason JJ. Much of the discussion can already be regarded
as academic because the Commonwealth has now legislated to cover
much of the matters dealt with in the State Acts by its Historic Shipwrecks
Act 1976 (which was passed after this action commenced).
The interest that remains in the case is to be found in the ways that
the various judges approached it. Attention has already been drawn to
significance of the discussion of locus standi and the powers of a State
legislature. The approach to the question of inconsistency illustrates
certain divisions and perhaps presages some more definitive discussion
of this area of constitutional law in the future. No doubt we will also
soon see another judge take up Murphy J.'s provocative comments as
to the nature of the relationship between Australia and the United
Kingdom. The case might also be seen by some as illustrating, in the
composition of the majority and the minority (notwithstanding the
concurrence of Barwick C.J. and Murphy J.), some of the ideological
influences at work in determining the decisions of the present High
Court.
ALLAN MURRAY-Jo~ES*
44 Id. 672.
45 Id. 674.
46 No member of the court dealt specifically with the question of what
"sovereignty" entails.
* B.Ec., LL.B. (Hons.).
AS ALLAN ROBINSON SAID:
"In Western Australia Treasure is not for the finder"
Email Rex Woodmore: [email protected] or [email protected]