va REGISTRAR FEDERAL COURT OF AUSTRALIA, HIGH COURT OF AUSTRALIA ROBINSON PLAINTIFF AND THE WESTERN AUSTRALIAN MUSEUM DEFENDANT ORDER Demutrrer overruled with costs 31 AUGUST 1977 Solicitors for the plaintiff, Messrs, £. M, Heenan & Co. Solicitors for the defendant, Mr C. le Ber Langouiant, Crown Solicitor for the State of Western Austraha BARWICK C.J. In the year 1656 a Dutch vessel named "'Vergulde Draeck" or "Gilt Dragon" on its way from the East Indies to Holland in the course of trade, was blown off course and succumbed to an uncharted reef on the West Australian coast near Ledge Point, between the present towns of Lancelin and Yanchep some 40 miles or so north of Perth. The remains of the vessel thus wrecked now lie on the floor of the occan some 2.87 miles from the nearest pomt of that coast. The plaintiff claims to have located the remains of the vessel and subsequently, after an interval of time, 1o have relocated them and to have extracted therefrom a number of articles He has brought this suit seeking a declaration that State legislation, namely the Museum Act 1959- 1964 (W.A.) (the 1959 Museum Act), the Museum Act 1969 (W A.) (the 1969 Museum Act) which Act repealed the 1959 Afuseum Act, and the Marine Archaeology Act 1973 (W A.) (the Marine Archaeology Act) are in fact void as being beyond the legislative competence of the State of Western Australia. He claims that, 1f valid, these laws would prevent him from continuing to explore the remains of the vessel and to remove therefrom any of the things it was carrying or which had formerly been affixed thereto and to obtain salvage or other compensation for what he has already done or might yet do in relation to the wreck. The State challenges the plamtiff's interest to bring such a suit and asserts the validity of the Icgislation Two principal questions arise for decision first, has the plaintiff a sufficient mterest to maintain the suit and, secondly, are the State laws valid enactments of the legislature of Western Australia. By the 1959 Afuseum Act, the Western Australian Museum Board was constituted. Its function was to undertake the care and control of the Western Australian Museym established at Perth and of all coins, medals, objects of natural history, mineral specimen and exhibits and other personal property acquited for the purpose of the Muscum All the personal property in the possession or control of or held in irust by the Trustees of the Museum and Art Gallery of Western Australia for the purpose of being used for the provis- 1on of a museum was transferred to and vested m the Board. Certain land was also vested in the Board. The only significance of this Act for present purposes is that the Board constituted thereby became the intended repository of proprietary rights in the wreck of the "Gilt Dragon". By the Museum Act Amendment Act, 1964, the Board was authomsed to take possession of historic wrecks which were defined as: "(a) any shrp referred to in the Schedule to (that) Act, and (b) any other slup that was or appears likely to have been abandoned, wrecked or stranded before the year nineteen hundred and which 1s lymg below low water mark in the terntorial waters of the State." The Board was also authorised with the approval of the Minister - (i) to reward the finder of a previously unknown [ee pen ee we ae een -3- In 1973 the Maritune Archaeology Act was passed by the legislature of Western Australia. Its relevant provisions are "4, (2) For the purposes of this Act - (a) any area in which the remains of a ship, which mm the opinion of the Director may have been a historic ship, are known to be located, (b} any area in which any relic 1s known to be located, or where in the opinion of the Director unrecovered relics associated with a ship whitch may have been a historic slup are likely to be located; and (c) any structure, campsite, fortification or other location of lustoric interest that, in the opimuon of the Director, is associated with, and was occupied or used by, persons presumed to have been 1n a hustone ship, shall be a maritime archaeological suze." Such sites may be situated, amongst other places, below low water mark (s 4(2)). An "historic ship' was defined as. "any ship that before the year nineteen hundred was lost. wrecked or abandoned, or was stranded, on or off the coast of Western Australia" (s. 3). The property in and nght to possession of all lustoric ships 1s vested in the Museum on behalf of the Crown, ie the Crown m right of Western Aust- tralia (s. 6(1)). Such property and nglit to possession is deemed to have been vested in the Board of the Museum from the commencement of the amending Act of 1964 and until the commencement of s. 42 of the 1969 Museum Act, and in the Museum thereafter until the commencement of the Maritune Aichaeology Act, 1973 (WA) (the Maritime Aichaeology Act). An inlubi- tion is imposed upon persons assuming possession or conirol of an archaeo- logical site, ship, relic or thing vested in the Museum by that Act (s. 8(1)). Power is given to the Crown to declare an area an archaeological site and that a specified area surrounding that site 1s a protected zone which may include the waters above and the land or bed of the sea below that zone (s 9) Regulations may be made tmposing conditions or restrictions upon the introduction into or the usc within a prolubited zone of divmg, salvage or recovery equipment and the entry into or remaining within a protected zone of any vessel carrying any such equipment, and upon diving or moorng of pn ee pe ne ee et rr er ie ~ ~e hisloric wreck up to a sum of One thousand pounds, i} to reimburse the expenses of any person deliver- ing to the Board an historic wreck, Git) to take steps to take possession of, recover, preserve and display any histone wreck vested in the Board, Gv) to promote or supervise activities intended for the discovery, recovery, preservation and display of historic wrecks. e See s. 17(2)(e) to G) The amending Act contained a schedule containing the name of ships, the years and location of their wrecks, all of which were vested by the amending Act in the Board (s. 20B(2)). In that schedule appears the name "Gilt Dragon", the year of wreck being given as 1656 and the location of the wreck given as Latitude 31° 12" 15.9" S, Longitude 115° 21° 19.5" B. The amending Act also provided mach- inery for vesting in the Board any other historic wreck in respect of which a particular notice is given (s 20A) or which the Director of the Museum (app- ointed pursuant tos 15 of the 1959 Museum Act) thought was of national or local historical mterest or of scientific, archaeological, educational or other special or local mterest (s. 20B(1){a)) No compensation was to be paid to any person by reason of the vesting of an historic wreck in the Board (s. 20B(3)) By s. 20B(5) any person who "without the consent of the Board in any way alters, removes, destroys or in any way deals with or assumes the custody or control of any historic wreck vested in the Board" was guilty of an offence. The 1969 Museum Act constituted the Western Australian Museum con- sisting of Trustees of the Muscum (see ss. 7 and 27) Part V of this Act made specific provision with respect to lustoric wrecks, which were in substance defined as m the 1959 Museum Act. Amongst the sections of this part, many of which repeat sections of the former Act, 1s s. 39(6) which makes it an offence for a person not bemg the finder of an historic wreck to remove it or part of it = Thé "Gilt Dragon" was now vested in the Museum (s. 40(3)). The functions of the Museum included the encouragement and provision of facilities for the wider education of the comnnunity of the State through the display and other use of collections, the preservation of the history of the exploration, settlement and development of the State Alf articles im the possession or contro! of the Board under the 1959 Afuseuim Aet were vested in the Museum (s, 29), the Trustees being given the management and control of the property and affairs {s 20). -4- vessels in any such zone (s. 9(5)) Contravention of any such regulations is made an offence (s. 9(6)). It 1s apparent from this recital of the relevant statutes that the legisla- ture of Western Australia has purported to take possession and control of the "Gilt Dragon" and to have vested the property m its wreck in a Western Australian body, the Board or the Museum as the case may be. No nght of salvage or compensation is preserved or given by these statutes. If the Acts in question are valid, the plaintiff could not recover salvage or compensation from the Crown in right of Western Australia nor could he seek to take or exercise possession of the remams of the vessel. The plaintiff claims to be the finder of the remains of the "Gilt Dragon", to have notified his discovery - and rediscovery - to the Common- wealth Receiver of Wrecks under the Navigation Act, 1912 as amended (Cth) (the Navigation Act) and to have "worked the wreck by himself and his agents from April 1963 until December 1964 and (to have) salvaged many valuable artifacts and coms from the wreck site". These items he has submitted or disclosed to the Commonwealth Receiver of Wrecks in Fremantle and to the Board of the Museum. The plaintiff alleges that, in turn, the Board and the Museum, relying on the respective Acts, have assumed control of the remains of the ''Gilt Dragon" and have worked on, damaged and recovered materials therefrom. I can dispose bricfly of the question of the plamtiff's interest to main- tain hus suit. It is said on behalf of the defendant that the plaintiff has no greater interest than any other member of the public to contest the validity of the Western Australian Acis. That proposition has been pressed upon us by the Solicitor-General for Western Australia. But I am clearly of the opinion that the plamtiff has a greater interest than any other member of the public to seck the assistance of the Court to determine the validity of the legislation. He located and relocated the remains of the shup and, in fact, he has done acts of possession in 1espect of it, 1 e. of such possession of which such remains are capable. He has "worked" the ship for a considerable period of trme.- He claims to have done such acts as would entitle him esther to salvage in the strict sense of the word or to fair compensation for his efforts 1f the Acts in question were not operative. The salvage or compensation he claims to be payable by the Crown in whom the wreck is now vested. If the Acts are not valid the question by whom salvage or compensation might be payable would arise But there 1s no need for me to decide which Crown o1 what other person or body is the person or body liable for salvage or compensation. There are various possibilities and their resolution cannot contribuie to the resolu- tion of this case It is sufficient for present purposes that he has claimed to be entitled cither to salvage or compensation. = ee -5- The Acts would prevent the plaintiff from sceking to assume possession or, if the mght conclusion be that he has already becn in possession, to con- tinue possession, of the wreck If valid, his claim to salvage ar compensation would seem to be denied by the legislation. True it is that s. 20B(3) of the 1959 Museum Act and its replacement in the 1969 Museum Act relates to the consequence of the vesting of the "Gilt Dragon" in the Board or Museum as the case may be. And it may be said that this vesting did not in terms place salvage or compensation beyond the reach of the plamtiff. But his ability to perfect his claim for salvage or compensation is clearly defeated by s 20B(5) of the 1959 Museum Act and its counterparts: and no power 1s given to the Board or the Museum to pay salvage or compensation nor is any right against the Board or the Museum created. The plaintiff 1s not merely in the position of a member of the public who falls within the prohibition of the statute. The Solicitor-General for Western Australia, in a somehwat colourful expression, suggested that the plaintiff had no greate: intercst than a weekend picnicker who happened to drop upon the wreck during his weekend leisure. But 1t seems to me that such a proposition is untenable. The contrast between the position of the plaintiff and that of the Solicitor-General's artless wanderer 1s so stark as to be eloquent of the plaintiff's peculiar terest in the operation and validity of the Acts. It is no exaggeration to say that no member of the public is affected to the same extent as 1s the plaintiff by the provisions of the Acts to which IJ have referred. I conclude that the plaintiff has a sufficient interest to main- tain his suit. There was some contest as to whether what the plaintiff located was televantly a wreck But, sn a sense, the question does not really arise. The statutes treat the remains of the "Gilt Dragon'' as a wreck They, in their relevant provisions, are based on the premise that what 1s on or in the sea bed 1s a wreck and 1t 3s for that reason that the plaintiff is excluded. In any case The Tubantia (1924) P. 78 at p. 87, sufficiently disposes of the submission that the remains of the "Gilt Dragon" do not constitute a wreck and that the plaintiff's work upon them may not give mse to salvage. The remaining question 1s whether the legislature of Western Australra has legislative competence to enact the Jaws in question so far as they affect this wreck and the arca in which it rests. The terutory in respect of which that legislature is competent to make laws 1s the land mass which 1s bounded in the west and north-west by the low water mark on the coastline. The bed of the sea beyond that point 1s not included m that territory In particular, that sea bed for the first three nautical miles from the shorelimes is not so included. Thus it 1s, in my opinion, quite clear that the bed of the sea and things upon st and within it are not themselves subject to the legislative power of the State, with the exception of those erections which the Australian Parhament has excepted from rts own corttrol (sce s. 15 of the Seas and Submerged Lands Act, 1973 (Cth)). Having regard to the terms of s. 51(x) of -6- the Australian Constitution, the State may make laws controlling fishing in the seas comprised in the first three nautical miles offshore of rts territory, at least in so far as such laws fulfil the requirement of being laws for the govern- ment of that territory. But the waters within those limits neither form part of the territory of the State nor are themselves the subjcct of legislative power of the State. However, a law whitch satisfies the test of beg a law for the govern- ment of the State may validly operate beyond the actual boundaries of the land mass which constitutes the territory of the State. Such a valid operation 1s not limited to an area of sea within three nautical miles of the coastline The validity of a law of the State will be determined by resolving the question whether it can properly be said to be a law for the peace, order and good government of that territory. But this does not mean that the legislature of the State has extra-territorial legislative power, as has, for example, the Parlia- ment of the United Kingdom and the Australian Parliament, in the latter case by virtue of the Statute of Westminster, 1931 (Imp.), s. 3 and the Statute of Westminster Adoption Act. 1942 (Cth). Places and objects beyond the terr- tonal boundaries of Australia may themselves be the subject of laws passed by the Australian Parliament Thus the power of the legislature of a State to give laws, validly made for its termtory, an extra-terntomal operation where such operation serves the peace, order and good government of that territory 1s in high contrast to the extra-territorial legislative power of the Australian Parliament. Jn the case of the Commonwealth, so long as the law satisfies one of the heads of legislative power granted by the Constitution to the Common- wealth, it 1s no objection that the law takes as its subsect matter something which 1s beyond the territorial mits of the Commonwealth In the case of the Commonwealth, bearmg in mund tts power over external affairs, this means that the Commonwealth may take as the subject matter of its law some fact or circumstance which is actually outside the termtonal limits of the Commonwealth. But it is otherwise in the case of the States: their laws must first be seen to be laws which are for the peace, order and good government of the State and thereafter when they answer that criterion they may operate extra-territorally so long as the extra-territonal operation is still something which can be said to be for ihe peace, orde: and good government of.-the State. In the present instance, the Maite Archaeology Act, and Pait V of the 1969 Museum Act, take as their subject matter the wrecks and the arcas around the wrecks on the ocean floor beyond low water mark on the coast- line of Western Austialia The laws segregate these areas and these wrecks and prevent all persons from having access to them. Some endeavour was sought to be made fo establish the proposition that, because of the historical significance of these wrecks to the peace, order and good government of Western Australia, the Acts were laws for the peace, en in one ee ee eee -7- order and good government of Western Australia I find this endeavour com- pletely unconvincing Affer all, these wrecks, but particularly the "Gilt Dragon", were wrecks of Dutch ships which were in the course of commerce between Holland and the East Indies. They were not even bent upon or in any wise instrumental in the exploration of the Australian coastline: less, indeed, were they engaged in doing anything with particular historical significance for the Colony of Western Australia. The most that can be said about them is that they rest on the bed of the sea"'off" the north-western coast of Australia and that the coastline of that coast now forms the boundary of Western Australia. No doubt the Western Australian Museum 1s a Western Australian mstitutron and no doubt its establishment and maintenance 1s for the peace, order and good government of Western Australia. So it may be said of the support and extension of its activities, but to my mind by no stretch of the :magination could it be said that the declaration of marme archacological sites or of ancient wrecks on the bed of the sea "off the coast of Western Australia" was really a matter of concern for the peace, order and good government of the State of Western Australia. With a degiee of artistry these ancient wrecks were des- cribed as "historic". So they might properly be styled in the history of naviga- tion but scaicely in the history of the Colony or State of Western Australia Doubtless the display in the Museum of items recovered from the wreck could enhance the effectiveness of the Museum and ofits educational functions So, mdeed, might the display of one of the cannon from Cook's "Endeavour" But in neither case would that circumstance make a law as to the possession of a part of the bed of the sea a law for the government of the State of Western Australia. Cook's cannon has indeed 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 flect I might mention m passing that the Mame Archaeological Act does not confine the power to declare archaeological sites to a1eas in pionimuty to the shoieline of Western Australia. The areas are selected by 1efercnce to the pre- sence of an Iustoric ship which may have been lost. wrecked or abandoned "'on or off the coast of Western Australia". On the other hand, the 1959 Museum act and the 1969 Afuseuim Act hmit the definition of "historic wreck" - apart from the scheduled wrecks - to wrecks "lying below low water mark in the territorial waters of the State". There would therefore be Isttle reason to confine the extent of the power given by the Mane Archaeological Act to declare archaeological sites to their declaration in the "territorial waters of the State" The expression "on or off" the coast of Austraha appears in the ihstoie Slupwiecks Act, 1976 (Cth) (the Mtstoric Shipwrecks Act) where, 1t seeins to me, it cannot be confined to an area within three nautical miles of the coast. Again, ihe inhibition of each of the Acts 1s not limited to the citizens or residents of Westem Australia. The prohibitions are untversal we ee ee ee ee -8- These considerations emphasise the fact that the wrecks and the sea bed on or in which they lie are in themselves, and apart from any connection with the territory of Western Australia or of any activity there carned on, made the subjects of the legislation. I should add that the limitation by the 1959 Museum Act and the 1969 - Museu Act of wrecks "lying below low water mark in the territorial wateis of the State" does notlung to connect the Jaw as to the wrecks with the teiritory of Western Australia or with 1ts government, just as the fact that the "Gilt Dragon" happens now to lie within three nautical miles of the coastline of Western Australia has no bearng, in my opinion, on the validity of the laws here under attack, or upon the resolution of this case. ! In my opinion, the Western Austrahan statutes may not validly forbid | the plaintiff to enter the ayea around the wreck of the "Gilt Dragon" or to explore it or to proceed which what may amount to salvage operations with K respect to it or to remove from it articles which the vessel contained when it was wrecked long ago A great number of other matters were discussed in the course of the argument of the case, but taking the view I do of the plaintiff's claim and of . the defendant's demurrer I find no need to discuss them Questions as to re- pugnancy of the Western Australian laws with the British Aferchant Shipping Act of 1894 do not arise so far as [am concerned because of my view that the . Western Australian statutes in the stated respects are beyond the legislative competence of the Westein Australian legislature Equally, questions as to whether there 1s inconsistency within s. 109 of the Australian Constitution between the Icgislation of Western Australia and the Navigation Act for the same reason do not anse Further, there is no need in order to 1esolve tlus case to decide in whom the title to the wreck really resides. That question may tur, in my opinion, upon the true constmiction of Part VII of the Naviga- tion Act, or other legislation of the Australian Parliament. But 1ts solution 1s not necessary, in my opinion, for the disposal of this demurrer. There can be no doubt, in my opinion, of the legislative power of the Australian Parliament to pass laws for the possession and control of ancient wrecks around the Australian coast without any specific limitation as to distance therefrom. If, on the true constiuction of Part VITI of the Navigation "ict, it has not alieady done so - a matter on which I express no opinion - it can certainly do so. The I/tstoric Shipwrecks Act, passed after the commence- \ ment of these proceedings, is an exercise of such a power. i- In my opinion, the demurrer should be overruled. ye Ree 3 mene ee ee pn re -9- GIBBS J. The Vergulde Draeck - The Gilt Dragon - was one of those Dutch ships which, during the 17th century, sailed too far to the cast on her voyage from Holland to the East Indies and perished on an uncharted reef off the coast of New Holland A few survivors reached Batavia, but whatever dircc- tions they may have been able to give did not enable the wreck of the Gilt Dragon to be found, although it was believed to contain a large sum in guild- ers For 300 yeats the wreck lay beneath the waters of the Indian Ocean, undisturbed by man Then - according to the version of the facts which we must accept for the purposes of this demurrer ~ 1t was found, in August 1957, by the plaintiff, who gave notice of his discovery to the Commonwealth Receiver of Wrecks at Fremantle and claimed an interest in the wreck as finder. Apparently the plaintiff had failed to fix the position of the wreck with sufficient certamty, for he was unable to find it again until, after several years of searching, he rediscovered it on the 14th April 1963. The pleadings do not give a description of the present condition of the wreck other than that it 1s submerged by the sea and located im the seabed. It appears from what was said in argument that time and the scas have left of the ship only scattered remnants which are encrusted with corals and other marine growths, and if not entirely covered by the scabed can hardly be distinguished from it. The position of the wreck has now been fixed, it 1s in the open sea, 50 miles or so north of Perth, and less than three nautical miles from the shore. In Apnil 1963 the plaintiff again gave notice of his discovery to the Commonwealth Receiver of Wrecks and again claimed an interest as finder. He salvaged from the site of the wreck many valuable artifacts and coins, which he erther submitted or disclosed to the Commonwealth Receiver of Wrecks and to the Western Australian Museum Board (the Board''), a body establish- ed by the Museum Act, 1959 (W A.). But after the Museum Act Amendment Act, 1964 (WA.) came into opcration on the 18th December 1964 the plaintiff was no longer able to work on the wreck or to recover materials fiom it First the Board, and then, after the passing of the Museum Act, 1969 (W.A.), the Western Australian Museum (the present defendant), assumed sole control of the wreck and worked it and recovered materials from it The defendant refuses to allow the plaintiff to work the wreck and by its control of the wreck effectively prevents him from doing so. The Board and-the defendant have refused to reimburse the plamtiff for the expenses, or any part of them, that he has incurred in salvaging materials from the wreck or to compensate him in any was as finder of :t. In these circumstances the plaintiff brings the present proceedings claiming a declaration that certain provisions of the Afusewm Act, 1959-1964 (WA), the Museun: Act, 1969 (W.A) and the Mantime Archaeology Act, 1973 (W.A.) are invalid, and claiming also an injunction and further declarat- ory relief The defendant has demurred The plamtiff's claim is too widely drawn, it appears to seck a declaration of the invalidity of some provisions of those Acts which on no possible view could adversely affect the plaintiff, -10- insofar as the working of the Gilt Dragon, or his ownership and control of the materials recovered therefrom, are concerned. The Museum Act, 1959-1964 (W A.) drew a distinction between two kinds of "historic wrecks" - that term was defined ins 3 to include (a) any ship referred to in the Schedule to the Act; and (b) any other ship that was or appears lukely to have been abandoned, wrecked or stranded before the year 1900 and which 1s lying below low water mark im the termtoral waters of the State The term also included any equipment, machinery or other article of whatsoever class or kind belonging to or separated from, or which came from, any such ship and which is so lying and any part of the hull of any such ship which is so lying. The ships referred to in the Schedule includ- ed the Gilt Dragon. Of the other ships therein referred to it 1s said that at least one, the Trial, is lying more than three nautical miles from the nearest land. The finder of an historic wreck, other than one mentioned in the Schedule, was required to give notice to the Board, and the Governor was given power to vest in the Board any such wreck which the Director of the Museum was of opinion was of national or local historical interest, or scienti- fic, archaeological, educational or other special national or local interest' ss. 20A, 20B(1)(a), (b) The historic wrecks referred to in the Schedule were "by force of this subsection vested in the Board on behalf of the Crown for the purposes of this Act" s. 20B(2) Those pu poses included the recovery, preservation and display of any historic wreck vested in the Board (s. 17 (2)(h)), which, as the name implies, had the care and control of a museum (s. 17(1)(a)). That Act further provided that "No compensation shall be paid to any person by reason that any historic wreck is vested in the Board pur- suant to this Act" s 20B(3). It was made an offence for any person without the consent of the Board to alter, remove, destroy or in any way deal with or assume the custody or control of any historic wreck vested in the Board pur- suant to the Act s 20B(5)(a). By s 20C a person who had in his custody or under his control any property that belonged to or was taken or recovered from any historic wreck referred to in the Schedule and which was taken or recovered from the territorial waters of the State below low water mark, before the coming into operation of the Museum Act Amendment Act, 1964, was required to notify the Director of the Museum; if the Director then notified that person that he was of the opinion that the property was likely to be of national or historical interest, or of scientific, archaeological or other special national or local interest, that person was forbidden to sell, destroy or otherwise dispose of the property until he had obtained the written permission of the Board to do so, and if required by the Board was obliged to make the property available to the Boaid for inspection, and to transfer to the Board possession of the property, so that the Board might photograph, copy or otherwise make a record of it or investigate the extent of the interest that it might have: s. 20C(1), (2). However the Board was required to return the property withm a limited time, and was obliged to issue the necessary authority in writimg permitting the property to be sold, destroyed or othier- wise disposed of sees 20C(3), (4). In short, although the remnants of the -ll- wreck of the Gilt Dragon were vested in the Board, the articles taken from the wreck by the plaintiff before 18th December 1964 were not so vested, al- though the effect of the Act was that the plaintiff was liable to suffer a temp- orary interference with any right that he had to possession of, and to dispose of, those articles. By the Museun Act, 1969 (W.A.) the Musewmn Act, 1959-1964 was repealed. The defendant was constituted a body corporate, and it succeeded to the property of the Board ss. 7, 29,32. The Act contained, in s. 6, a definition of "historic wreck" similar to that of the repealed Act, but it excluded any wreck which was declared (under s. 41) not to be an historic wreck It declared, perhaps unnecessarily, that the wrecks mentioned in the Schedule (which again included the Gilt Diagon and the Trial) were vested in the defendant (s 40(3)) and went on to provide that compensation was not payable to any person by reason that an historic wreck was vested in the defendant pursuant to, or by opcration of, the Act: s. 40(4). Provisions simu!- ar to those of ss 20A, 20B(5) and s. 20C of the repealed Act were repeated in ss. 39, 40(6)(a) and s 42 of the Museum Act, 1969. The relevant provisions of the Museum Act, 1969 were repealed by the Museum Act Amendment Act, 1973 (W.A), and were replaced by provisions of the Maritune Archaeology Act, 1973 (W A.). These Acts were proclaimed on 7th December 1973. By s 3 of the latte: Act "hustomc ship" is defined to mean "any ship that before the year nineteen hundred was lost, wrecked or abandoned, or was stranded, on or off the coast of Western Australia', and "relic" means "any thing of historic interest that appears to have formed part of, or to have been carried by or derived from or associated with any Instoric ship, or to have been constructed or used by any peison associated with any such ship, and any thing to which the provisions of" s-s. 3 of s 6 "apply". The lastmentioned provisions do not concern us. By s. 6(1) the property in and mght to possession of all historic ships and maritime archaeo- logical sites is vested in the defendant on behalf of the Crown. By s 6(2) the property in and mght to possession of all relics derived from or associated with an lustoric ship 1s vested in the defendant on behalf of the Crown. There is however an exception in the case of (inter alia) an obycct taken or recovered from a ship mentioned in the First Schedule (which includes the Gilt Dragon) in relation to which due notice was given to the Director under s 20C of the Museum Act, 1959-1964, ors 42 of the Museum Act, 1969, and in respect of the disposal of which the necessary written permussion has been given, if that object was immediately prior to the coming into operation of the Act in the lawful possession of a person. Section 7(1) provides that 'Compensation 1s not payable to any person by reason that the property in and the right to possession of any site, relic, or thing 1s vested in the Muscum on behalf of the Crown by the operation of this Act' By s. 7(2) 1t is declared that the property in and the right to possession of any slup or relic by the operation of the Act vested in the defendant on behalf of the Crown is to be taken to ae yee Ree @ ene eee ae oe Pore = | -12- have been so vested for all purposes at ali material times in the Board, during the operation of the AMfuseum Act, 1959-1964, and in the defendant, during the operation of the Museum Act, 1969. It 1s made an offence for any person without the consent of the trustees of the defendant to (inter alia) remove or assume the possession, custody or control of any maritime archaeological site, ship, relic or thing vested in the defendant on behalf of the Crown pursuant to the Acts. 8(1)(a). Section 9 gives power to declare maritime archaeological sites and protected zones which may include the scabed Section 22 in substance continues the effect of notices given under s. 20C of the Museum Act, 1959-1964 ors. 42 of the Museum Act, 1969. On behalf of the plaintiff 1t 1s submitted that the relevant provisions of the three statutes in question are not valid enactments of the legislature of Western Australia because they purport to have an extra-terntorial operation, and lack a sufficrent connection with the State. Alternatively, it is submitted that those provisions are repugnant to the Merchant Shipping Act, 1894 (U.K.) and therefore void, or alternatively that they are inconsistent with the Navigation Act 1912 (as amended) (Cth), and with the Seas and Submerged Lands Act 1973 (Cth) and invalid to the extent of the inconsistency At the outset there amses the question whether the plaintiff has stand- ing to challenge the validity of the legislation. The defendant contends that the plaintiff 1s in no different position from any other member of the public, and has no sufficient interest in the determination of the questions raised by his pleadings The plaintiff asserts that he has a special interest of a two-fold kind the statutes, sf valid, deny his right, as finder or salvor, to the possess- 10n of the wreck, and destroy his claim to reambursement of salvage expenses. In my opinion the plaintiff had a special interest of another kind in challeng- ing the validity of the legislation He had worked on the wreck, and had recovered things of value from it, and was prevented by the operation of the statutes from continuing to do so In other words the statutes prevented him from carrying on the activity m which he had been engaged and thereby caused him possible pecuniary detnment, they interfered with what was for him lus trade or business. This is enough to entitle him io challenge the validity of the legislation insofai as 1t prevents him from continuing his former activities Attorney-General for NS W.yv Brewery Employes Union of N S W. (1908), 6 CLR 469, at pp. 491, 497-498, 519-520, 549 and British Medical Association v. The Conunonwealth (1949), 79 C.L.R. 201, at pp. 257-258. Howevei he cannot, in my opinion, attack the legislation generally, but only so much as affected his interest The Real Estate Institute of NS.W v Blar (1946), 73 C.L.R. 213 at p. 227, British Medical Association v. The Common- wealth, at pp 257-258. The special interest just mentioned may not entitle the plaintiff to challenge all those provisions which he wishes to attack. The defendant denies that the statutes affected the mghts of the plaintiff in such a way as to give him the standing which he claimed. In the first place, 1t was said, he did not in fact have possession of.the wreck and had not in law -13- acquired any possessory rights in relation to the wreck with which the statutes interfered. In the second place it was said that the provisions of the statutes did not affect any right to compensation or rermbursement which he may have acquired as finder or salvor. The question whether a plaintiff has a sufficient interest to challenge the validity of legislation - an interest greater than that of any ordinary member of the public - may sometimes depend upon the resolution of controveited questions of law or fact It may be clear enough that if the plaintiff has the night or interest which he claims, and if the legislation has the effect which he ascribes to it, the legislation, 1f valid, will so affect the plaintiff as to give him standing to suc, but 1t may be disputed that he has such a right or interest, or that the legislation has such an effect In such a case 1t will be a matter for decision whether the Court proceeds to determine the disputed questions whose only immediate relevance is to establish whether the plaintiff has stand- ing to sue, or whether it will be satisficd to accord standing to the plaintiff on the ground that he asserts, not implausibly, that his interests are threatencd by the operation of the legislation in question The Court has a discretion ts not bound to take one course rather than the other If the plaintiff's clam to have a locus stand: 1s merely colourable, and can easily be exploded, the Court will no doubt proceed immediately to decide the question of standing and, having decided it against the plaintiff, will dismiss the action. But if the investigation of the claim requircs the consideration of weighty and complex questions which may never fall for decision if the issue of vaidity is decided agamst the plaintiff, 11 may be more convenient to proceed immediately to determme the validity of the challenged statute. The Court, in balancing the conflicting considerations, will remember that 1t cannot decide a question of validity as an abstract or hypothetical question In the present case if 1s in my opinion more convenient to decide the questions of validity raised by the demurrer than to determine the difficult questions that need to be considered only for the purpose of deciding whether the plaintiff has locus stand: The facts that the Commonwealth and a number of States have intervened to argue questions of power from different pomts of view, and that the questions of validity have been very fully examined, in my opinion support the conclusion that those questions should be determined. and that the action should not be dismissed for want of standing The first question that then falls to be decided 1s whether the three statutes now under consideration were within the competence of the legislature of Western Australia The attack upon then validity takes as its foundation the fact that they purport to operate in relation to things existing and occuring in the seas off the coast of Wesicrn Australia, below low water mark and at least as far from the shore as the three mile limit. That is of course undeniable Then it 1s said that the territory of Western Australia is bounded to seaward by low water mark and that the sea and seabed below low water mark, even if within the three mile limit, are not part of the territory of the State That was decided by the majority of this Court in New South Wales vy. Commonwealth (the Seas and Submerged Lands Case) (1975), 8 A.L.R. | The statutes therefore are - 14 - intended to have an extra-territorial operation. Indeed in respect to at least one wreck (the Trial) they are intended to operate beyond the three mile limit. Finally it 1s contended that the statutes Jack a sufficient connection with the State of Western Australza and are for that reason invalid. In Pearce v Florenca (1976), 9 A.L.R 289 I expressed my views as to the power of a State legislature to enact laws having effect beyond the limits of the State I need not again discuss the authorities to which J there referred The doctrine limiting the power of State legislatures to enact legislation having extra-termtorial effect is colonial in its origins, vague and uncertain in its nature and often inconvenient in its operation The only possible justification in principle for the doctrine 1s as a means of preventing or mitigating conflicts between the laws of two legislatures, when both sets of laws operate within the same territorial area - in other words, as a rule of international Jaw or, within a federation, as a rule controlling the operation of the laws of one State within the territory of another. Even in such cases the doctrine should not be allowed to have an unduly narrow and restrictive effect. But when the challenged law operates within a territorial area over which no other legislature, or another but paramount legislature, has power, the application of the doctrine can achieve no useful purpose -1t 1s then a pomtlessly frustrating fetter on the exercise of a legislative power that ought to be plenary. If no other law can operate there is no possibility of conflict. Where the only other law that can operate in the area will, in the event of inconsistency, prevatl, there 1s no reason to lumit the power of the subordinate legislature, since any conflict between the two laws wil, by 1ts very existence, be resolved in favour of the law enacted by the paramount legislature To restrict the power of the States to enact Icgislation taking effect within the off-shore waters is a needless impediment to the exercise of their legislatrve authonty, and does nothing to enhance the poweis of the Commonwealth. As I pointed out in Pearce vy Florenca, 1t was accepted for over a century that the juisdiction of colomal legislatures extended over the off-shore waters, and 1t would be unfortunate and anamalous if the powers of the State legislatures were now more limited. However I adhere to the conclusion which I expressed in Pearce y. Florenca, at p. 298, as follows "The lustory of the exercise of State powers in the past, the present public interest, and the reason on which the principle requiring a territorial nexus scems to rest, all combme to lead to the conclusion that the fact that the persons, things or events to wluch the legislation of a State applics occur within the off-shore waters provides sufficient connection with the Stute to render the legisla- tion valid " It is a sufficient basis for the validity of the statutes in question in the present case so far as they relate to the Gilt Dragon that they operated or operate (as the case may be) in the off-shore waters within three miles from the coast of Western Austiaha. But if further suppoit for their validity were needed it may ~~ fa - 15- in my opinion be found. The wreck of the Gilt Dragon is part of the history of Western Australia. The Dutch sailors who, albeit in some cases by accident, discovered and explored the coasts of Western Australia played a part of the early history of what is now the State. The preservation and public display of the relics of their voyages 1s a legitimate concern of the people of Western Australia Moreover the need to regulate the nghts of clasmants to wrecks and other articles found 1n the off-shore waters, and to prevent disputes and maintain order amongst persons seeking to exploit them, would provide the necessary connection with the terntory of Western Australia if the mere propinquity of the off-shore seas did not already provide it. It is true, as I have mentioned, that the statutes operated and operate (as the case may be) in respect of at least one wreck which lies in waters outside the three mule limit. That is not necessarily any objection to their validity, as Croft v. Dunphy, [1933] A.C. 156 showed. However we are concerned only with the wreck of the Gilt Dragon and need not consider whether the application of the statutes to a wreck outside the three mile limit was validly effected - if it were not, the provisions of the Schedule which included wrecks lying beyond the three mile limit would be plainly severable. It is convenient now to turn to the argument that the statutes in ques- tion are inconsistent with the Seas and Submerged Lands Act 1973 (Cth) and are for that reason invalid. It should be mentioned that the Seas and Submerged Lands Act came into operation only on the 4th December 1973. It was only on and after that date that any inconsistency between that Act and a law of the State could arise. Assuming that the State legislation was otherwise valid, on any view of the question of inconsistency the Museu Act, 1959-1964 had a valid operation until its repeal in 1969 and the pro- visions as to historic wrecks contained in the Muscum Act, 1969 had a valid operation until 4th December 1973, a few days before the repeal of the Jattcr Act. For reasons which will appear, 1t 1s unnecessary to consider what effect upon the mghts of the plaintiff these statutes would have had :f they had operated validly for a tume and then had become pro tanto invalid. There 1s in my opinion no inconsistency between the provisions of_the Seas and Submerged Lands Act and those of the Mantune Atchacology Act In the first place the Seas and Submerged Lands Act is not a law for the acquisition of property which had previously belonged to any State or person. If xt were such a law it would be invalid for want of provision of just terms s. 51(xxai) of the Constitution. It is a law by which the Commonwealth declared its sovereignty in the territorial sea - sees 6 It also declared the sovereignty- of the Commonwealth in respect of certain internal waters (ss. 11, 14) and that the Commonwealth has certain sovereign 1ights in respect of the Continental Shelf (s 11) but it will be convenient for me to confine my remarks to the case of the territorial sea. The Commonwealth Parliament did not, by means of the Act, go on to exercise the sovereignty which it we eee 2 en ey re - wee ee ee ee ee - 16 - asserted By the express terms of s 16 1t 1s provided that the preceding pro- visions of Pt. II of the Act - "(b) do not limit or eaclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the lay' 1s expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part." The operation of a State law will only be affected by the Seas and Submeiged Lands Act if the State law comes within the exception contained in s. 16(b) No question of inconsistency can arise in the case of any State law not within that exception unless and until the Parliament has enacted further legislation in exercise of the sovereignty asserted by s 6 - see Pearce v Florenca, at pp. 291-292, 298, 302. The Parhament of the Commonwealth has now enacted the Historic Shipwrecks Act 1976 (Cth) but that Act was not in force when the demurrer was entered, and it has not been the subject of argument in the present case and need not be considered. The Maritime Archaeology Act does not in my opmion come within the exception contained in s. 16(b) In one sense any exercise by a State of legislative power over the territorial sea mught be regarded as an exercise of sovereignty but obviously that 1s not what is meant by the exception. The reference to "sovereign rights" is explained by the fact that the Commonwealth asserts such mghts, rather than sovereign- ty itself, over the Continental Shelf. The whole purpose of s. 16(b) is to make it clear that the Act itself does not affect the validity of State legislation taking effect within the territorial sea, except such legislation as 1s expressed to vest any sovereignty in or to make any sovereignty exercisable by any person other than the Crown in right of the Commownealth. In othe: words s. 16(b) 1s only concerned to invalidate State laws which expressly assert sovereignty contrary to the Commonwealth's assertion. A law vesting pro- perty in someone on behalf of a State is not a law which vests sovereignty in that person or makes it exercisable by hum. For example, a law by which a State confiscated the property of persons illegally fishing in the territorial sea would not be within the cxception contained m s. 16(b) and would not be inconsistent with the Seas and Submerged Lands Act So much clearly follows from the decision in Pearce v Florenca. In argument it was said that a State law purporting to appropriate part of the seabed would be inconsistent with the Seas and Submeiged Lands Act, and that the provisions of the Maittime Aichaeology Act relating to maritime archaeological sites, or to a wreck embedded in the scabed, were accordingly invalid. There 1s in my opinion no reason to distinguish for this purpose between a law which vests real property in an instrumentality of the State and one which vests personal property, neither 1s expressed to vest or make exercisable any sovercignty (or, if those words apply otherwise than in relation to the Continental Shelf, any sovereign rights). It 1s therfore unnecessary to consider whether the pro- visions as to maritime archacological sites would, :f invalid, be severable, or mee ne aay -17- whether the wreck has lost ils character as a chattel and become part of the seabed - the latter question would not in my opinion be answered simply by saying that the wreck is located m the seabed, but 1t would be relevant to enquire to what extent it remained distinguishable from the scabed, and to what extent 1t had retamed its original character as a ship (cf. Elwes v. Brigg Gas Co (1886), 33 Ch.D. 562, at p. 567) and the pleadings do not permit an answer to be given to such enquines. For these reasons, in my opinion, the Maritime Archaeology Act is not rendered invalid by the Seas and Submerged Lands Act. Even more clearly the Museum Act, 1969 was not rendered invalid during the short time it remained in operation after the enactment of the Commonwealth Act. The next question for decision 1s whether the Western Australian statutes were or are repugnant to any of the provisions of the Merchant Shipping Act, 1894 (U.K.) which extend to Western Australia and were or are for that reason rendered void and inoperative by s. 2 of the Colontal Laws Vahdity Act 1865 (UK.). The submission on behalf of the plaintiff 1s that the Western Australian statutes are repugnant to ss. 523, 526, 536(2) and 537 of the Merchant Shipping Act. These sections appear in Pt. IX which deals with wreck and salvage. For the purposes of that part "wreck" 1s defin- ed to include "jetsam, flotsam, lagan, and derelict found in or on the shores of the sea or any tidal water" s.510(1) According to the rules of the common law a ship or its contents were not wreck unless they had been cast by the sea upon the land, but derelict mcant something abandoned and deserted at sca by those who were in charge of it, without hope on their part of recovering it see the authorities cited in Kennedy on Civil Salvage, 4th edition, at pp. 385-390 and "Abandoned Property at Sea Who owns the Salvage 'Finds'?" m Vol. 12 of William and Mary Law Review, at pp. 97 et seq. It was not con- tested that the Gilt Dragon was derelict within this definition and therefore brought withm the expression "wreck" by s. 510. The question however amses whether the relevant provisions of Pt. IX have any apphcation to wrecks in waters off the coast of Western Australia It has long been settled that the Merchant Shipping Act generally applied to the colonies and other British possessions, but some parts of if were expressly "dec- lared not to be applicable (e.g, by s. 372) and other provisions showed by their terms or nature that they were not intended to apply outside the United Kingdom or the waters near its coasts. Sections 511 to 519, 525 and 535 all contain express words which show that they were not intended to extend to a British possession such as Western Australia. Other provisions of Pt. IX (ss.. 520 to 522, 524, 526-527, 537) deal with the powers, duttes and funct- 1ons of receivers of wrecks, and since a receiver is a person appointed m a district within the United Kingdom (see s 566) those provistons also aie inapplicable outside the United Kingdom. Indeed most of the provisions of Pt. IX show by their own terms that they are applicable to the waters of British possessions outside the United Kingdom. Two of the sections relied - 18 - upon by the plaintiff, ss. 526 and 537, do not extend to Western Australia. A third provision on which the plaintiff relies in s 536(2) Sub-section (1) of that section expressly refers to a receiver. Sub-section 2 makes 1t an offence, mter aha, to wrongfully carry away or remove any wreck. Its words are wide enough to extend to wrecks in any part of the world. However the circum- stances that of the three sections which create offences in respect of wreck (ss. 535, 536 and 537), two (ss. 535 and 537) contain provistons which clearly indicate that they are not intended to have any application to wrecks found in British possessions such as Western Australia, and the third contains one sub- section which also can be seen to be inapplicable to such a British possession, leave no doubt that the remaining provision (s 536(2)) is also mapphicable. it is lumited to wrecks in (or possibly near) the United Kingdom. The remaining section upon which the plaintiff relies as creating a repugnancy 1s s 523 which provides as follows "Her Majesty and Her Royal successors are entitled to all unclaimed wreck found in any part of Her Majesty's dominions, except in places where Her Mayesty or any of Her Royal predecessors has granted to any other person the night to that wreck." This section presents some difficulttes of construction. Notwithstanding the fact that other sections of the Act which deal with unclaimed wrecks are limited to wrecks in the United Kingdom, s. 523 appears to be intended to have a general application to all British dominions. The question arises whether the so-called territorial waters of a British dominion are part of that dominion, I should have held that the answer to that question should be in the affirmative were it not that the Seas and Submerged Lands Case suggests a negative answer. I shall however assume in favour of the plaintiff that s. 523 declares that Her Maesty 1s entitled to all unclaimed wreck found in (amongst other places) the waters within three miles of the coast of Western Australia. However on that assumption the Western Australian statutes which vested the wreck in the Board, or in the defendant, on behalf of the Crown are not repugnant to it Section 523 probably only states what would in any case have been the Crown's entitlement by virtue of the prerogative. The Crown is one and indivisible throughout Her Majesty's dominions, although Icgislative and admumistrative power 1s exercised through different agencies in different places The Engineers Case (1920), 28 CL.R 129, at p. 152; Munster for Works (WA) v. Gulson (1944), 69 CLR 338, at pp. 346-357. Although this principle 1s of little practical assistance in many cases, as Latham C J observed in Minister for Works (WA )v. Gulson, at pp 350-351, 1t does help to lum- inate the provisions of s. 523. That section was not in my opmion intended to clam for Her Majesty, in right of the United Kingdom, wrecks found in any part of Her Majesty's dominions. Jt would have been absurd to suppose that it was intended that the administrative control of wrecks in India or Canada or Australia was to be vested in the agencies of government in London, eae nae ee wo eens ges we eee ~ 19 - rather than in those in the colonics The effect of s. 523, so far as Western Australia 1s concerned, is that wrecks within Her Majesty's dominions in Western Australia are vested in the Crown in right of Westem Austraha This view is strengthened by the fuct that the detailed provisions which the Act makes with regard to wrecks have no application to Western Australia The Western Australian statutes, in vesting certain wrecks in the Board, or in the defendant, on behalf of the Crown, do no more than effectuate or perfect the entitlement recognized by s. 523. For these reasons there 1s in my opinion no repugnancy between the provisions of the legislation in question and those of the Merchant Shipping Act. The final question for decision 1s whether the Western Austialian statutes were inconsistent with the provisions of Pt. VII of the Navigation Act 1912 (as amended) (Cth), which deal with "Wrecks and Salvage". By s 294 of that Act "wreck" is defined to include mfer aha "derelict found in or on the shores of the sea. . and any articles or goods of whatever kind which belonged to or came from any ship wrecked, stranded, or in distress, or any portion of the hull machinery or equipment of any such ship". By the same scction "receiver" 1s defined to mean "a receaver of wreck duly appointed by the Minister as such in any assigned district" By s. 302 any person who finds or takes possession of any wreck "within the limits of Australia" must give notice to the receiver By s. 303 it 4s provided that no person other than the owner shall keep possession of any wreck or fail on demand to delivei it to the 1eceiver. Whete a recetver takes possession of a wreck he must give the appropriate notice (s. 30+) and the owner, upon establishing his claim within the specified tune, and upon paying the salvage fees and expenses due, is entitled to have the wreck or the proceeds thereof delivered up to lum. 8.305 The receive: 1s grven power to sell the wreck in certam circumstances s 306. Section 308 provides as follows "The Commonwealth shall be entitled to all unclaimed wreck found in Australia " Certain offences in respect of wrecks are provided by ss. 312 to 314. Itis necessary to mention only s. 312, which provides' "Every person who takes into any place out of Australia any ship stranded, derelict, or otherwise m distress, or any wreck found on or near the coasts of Austraha, and there sells it, shall be guitty of an mdictable offence." Section 317 provides as follows "Where any ship is wrecked stranded or in distress at any place on or near the coasts of Ausiralia or any tidal water within Australia and services arc rendered by any person in assisting that stup or saving any wreck, there shall be payable to the salvor, by the owner-of the stup or wreck, - 20 - a reasonable amount of salvage, to be determined in case of dispute in manner hereinafter mentioned." The provisions of s. 308 of the Navigation Act are notin my opinion in conflict with those of the Western Australian statutes whose effect has been to yest the property and the mght to possession in the historic wrecks in the Board or in the defendant on behalf of the Crown. I need not decide whether a wreck found in the off-shore seas within the three mile mut is "wreck found in Aust- tralia" within the meaning of the section. However the section applies only to "unclaimed wreck". If the wreck 1s claimed, at least 1f the claim is not dismiss- ed as unsound, the wreck is not within the section. A claim to the property in a wreck need not be based on a law of the Commonwealth. It 1s most likely to be based on the rules of the common law but there 1s no reason why it should not be based on the statute law of a State. The State could of course validly enact laws as to the title to ships within the territory of the State, and a clarm- ant might successfully base his claim on such alaw Simularly in my opinion if a State has validly passed a law as to property in a wreck a claim to the wreck could be based on that law In the present case the Gilt Dragon, and the relics of and from 1t, other than those within the exception set out in s. 6(2) of the Maritime Archaeology Act, are the property of the defendant on behalf of the Crown They are not unclamed wrecks within s. 308. In this respect the Maritime Archaeology Act, and the earlier Western Australian legislation, does not and did not conflict with s. 308. On the contiary s. 308 operates, and is mtended to operate, agaist a background of which those State laws fonned part. Further in my opinton there is no inconsistency between the other pro- visions of the Navigation Act which deal with wrecks and salvage and those of the Western Australian statutes. An examination of the two sets of provisions shows that there 1s no direct or express inconsistency between them; both sets of laws are susceptible of simultaneous obedience. That of course ts not enough. If the Commonwealth Parliament had in enacting the Navigation Act the in- tention "to express by 1fs enactment, completley, exhaustively, or exclusively, what shall be the law governing the paiticular conduct or matter to which its attention 1s directed", it would be inconsistent with that enactment for a law of the State to govern the same conduct or matter' Ex parte McLean (1930), 43 C.L.R. 472, at p 483. In my opmuion it js clear that Pt. VII of the Naviga- tion Act 1s not intended as a complete statement of the law regarding wiecks Indeed this very question was considered 1n relation to s. 329 of the Navigation Act, which gives the Minister powers in respect of the removal of wrecks on or near the coast of Australia, and 1t was held in Victoria » The Commonwealth (1937), 58 CL.R 618 that there was no inconsistency between that section and a Victorian statute which provided for the removal of ships sunk within a Victoian port, at least in the absence of an actual exeicise by the Common- wealth authornty of the power given by s 329. The Navigation Act is not in any way directed to the preservation of historical wrecks, which is the subject of the State Iegislation. The State legislation would in no way alter, impair or we -21- detract from the operation of the Commonwealth law cf. Vietoria v. The Commonwealth, at p. 630. Put in another way, the State legislation deals with wrecks in a different character from that in virtue of which they are reg- ulated by ihe Commonwealth law. Finally special mention should be made of s. 317. I shall assume, for I do not find 1t necessary to decide for the purposes of this demurrer, that the section applies to ships wrecked before the Navigation Act came mto force, and that a person who finds the site of an ancient wreck and recovers relics of the wreck from the seabed renders services "'m assisting that ship or saving any wreck" within the meaning of the section. On those asumptions the section would entitle such a person to payment by the owner of a reasonable amount for salvage. It was submitted that this 1s inconsistent with the provisions of s. 20B(3) of the Museum Act, 1959-1964, s. 40(4) of the Museum Act, 1969 and s. 7(1) of the Maritime Archaeology Act, 1973, which, as I have already mentioned, provide that compensation 1s not payable to any person by reason that a historical wreck is vested in the Board, or the defendant, by the opera- tion of those Acts. Section 7(1) of the Maritime Archaeology Act is m wider terms than the corresponding sections in the other statutes, but the difference is not material. These provisions of the State laws do not in my opinion in any way affect the right of a person entitled to salvage under s 317, not because the latter section is in conflict with the former and prevails over them, but because the State provisions deal with a matter entirely different from that dealt with by s. 317. The State laws deal with the consequences of the vesting of the property which the State legislation effects. The Common- wealth legislation is not concerned with the question of compensation for any expropriation of property but symply with the question of salvage for services rendeied. Neither provision affects the operation of the other. Ifa person is entitled under s. 317 to salvage for saving any wreck of which the defendant has become the owner by force of the State legislation, the defendant, as owner, is obliged to pay the salvage There is no consistency between the State and Commonwealth provisions. Since the argument that the State legislation 1s inconsistent with the provisions of the Navigation Act should in my opinion fail. f need not con- sider whether the provision of Part VIl of the Navigation Act were validly enacted. In my opinion the challenge to the validity of the three statutes of Western Australia should fail completely. I would allow the demurrer. STEPHEN J. In 1656 the "Gilt Dragon", a vessel of the Dutch East India Company's fleet, foundered in open waters almost three nautical miles off the coast of Western Australia while on a voyage from Holland to Batayia. aye - 22- The plamtiff claums to be the first to have discovered the site of this wreck, in August 1957. He told the Commonwealth Receiver of Wrecks at Fremantle of his discovery, claaming what he conceived to be his interest in the wreck, as the finder of 1t. Then for some years he was unable to find :t again but in April 1963 he rediscovered it. He then, in the ensuing twenty months, recovered many valuable artifacts and coins from the wreck site, all of which he either submitted or disclosed to the Receiver and to the Western Australian Museum Board. His activities were brought to a halt in December 1964 Legislation of the State of Western Australia, which came into force mn that month, made it illegal for private persons to engage in such salvage operations on this and other historic wrecks. In his place, the Museum Board took up the work on the wreck site and its activities have since been continucd by 1ts successor, the Western Australian Museum. The plaintiff, by proceedings instituted in 1974, attacks the validity of this and subscquent more far-reaching legislation, all of which is concerned generally to preserve and protect historic wrecks on the Western Australian coast by vesting them in the Museum authorities and by preventing others from working them. The attack upon validity rests upon three distinct grounds, that the legislation 1s ultra vires the State's legislative power, that it is repugnant to the Imperial Ale chant Shipping Act 1894, and that 1t 1s incon- sistent with two Commonwealth Acts, the Navigation Act and the Seas and Submerged Lands Act His statement of claim also contains a variety of assertions of wrongdoing by the Board and rts successor, some unrelated to the relief which 1s sought, together with a series of contentions of law which are to be urged From all this there emerges, I think, the followmg complaints made against the Board and its successor: that unlawfully they assumed con- trol of "Gilt Diagon'? in 1964 and have since worked and damaged it, have removed materials from it and have retained some while disposing of others, whereas all should have been delivered to the plaintiff or to a reccivei of wrecks, that they have refused either to reimburse to him his expenses incurr- ed in salvaging materials or to compensate him as finder, thereby occasioning him damage; finally that they have, since 1964, excluded hum from further working the wreck. He seeks declarations that the legislation is ultra vires, invalid or inoperative and that the Museum's retention of materials is unalwful and adds prayers for injunctive relicf The matter now comes before this Court on the defendant's demurrer which, in addition to asserting the validity of the State legislation, asserts that the facts pleaded by the plaintiff disclose no cause of action and denies to the plaintiff any standing to suc. By leave the Commonwealth intervened and supported, in certain respects, aspects of the plaintiff's case while, on the other hand, the Sates of New South Wales, Victoma, South Australia and Tasmania mteryened to present arguments, supporting the validity of the Western Australian legislation - 23 - The State legislation which the plaintiff umpugnes, although recent in origin, has, since first introduced in 1964, undergone much subsequent amend- ment, no doubt in response to quickening interest in the wealth of historical relics requirmg preservation and care which exist in Westein Australia's off- shore waters It will be necessary to examine aspects of this legislation in some detail but for the present its broad outline will suffice The Afuseum Act 1959 (W A.), originally silent as to mantime wrecks, was amended in 1964 to empower the Museum Board to take possession of historic wrecks and recover, preserve and display them. Six specific fustoric wrecks, mcluding the "Gilt Dragon", were vested mn the Board, some lying many miles off the coast, far beyond league seas. The Board might also have vested in 1t other wrecks "lying below low water mark in the territorial waters of the State". Discoveiers of any newly found wreck might be rewarded and persons delivering any historic wieck to the Board might be paid their costs of recovering it, but no provision was made for any payment to the discoverers of the six named wrecks. Interference with any historic wreck was made an offence and the Board was given the nght to mspect property recovered before December 1964 from any of the s:, named wrecks and which was then in private hands. By the Museum Act of 1969 the previous legislation was repealed and substantially re-enacted, the present defendant was constituted as a body corp- orate and in 1t was vested all land, moneys and moveables vested in the old Boaid and all nghts relating to the Museum enjoyed by the old Board The specific vesting provisions of the former legislation concerning historic wrecks were repeated Then in 1973 those provisions of the 1969 Act dealing specifically with historic wrecks were repealed by the Afiseum Act of that year, but there was no divesting of property which had, by the repealed legislation, become vested in the defendant In the same year the Maritune Aichaeology Act was passed. It is of a more sweeping character than its predecessors, not only are ceitain wrecks named but a new term, "lustoric slup", is used, it 1s defined to mean any ship which before 1900 was lost on or off the Western Australian coast and "relic" is widely defined to mean a thing of Instore interest associated with such a ship Maritime archaeological sites are created, these include any area, whether or not below low water mark, in which the remains of what may be an histoiic ship are located and the property mn and might to possession of them and m and of all histouic ships, are vested in the Museum on behalf of the Crown. Extensive protected zones surrounding maritime archacological sites may be created The Act also contains penal and enfoicement provisions, 1n- chiding a conditional prohibition against the disposal of articles vested in the Museum and an avoidance of contracts for their disposal Mr Robinson's action 1s concerned exclusively with what he assets to be the effect upon him of this body of legislation and of action taken under it wee ere Re en ee en ee a ee we eee + - 24 - and, mm common with other litigants, he must, if he is to succeed, show that he has suffered detriment, or reasonably apprchends future detriment, against which the law will protect him; he must make out an available cause of action. He complains of the mpact upon him of State legislation, which he accordingly secks to impugn as invalid, and must as a start show himself to have been detn- mentally affected by it Most aspects of Mr Robinson's complaints will, I believe, on examination be found to be misconceived and to involve no detri- ment whatever to him. In one respect only, that 1s, by his exclusion fiom the wreck and its site, has he, in my view, felt the impact of the legislation and in that instance it has affected hum no differently from any other member of the public Accordingly, whatever might be said about the validity of this legisla- tion and the important constitutional considerations which this involves it should not, I think, be said in these proceedings, in which J regard the plaintiff as not entitled to any relicf. To appreciate why this is sorcqurres an understanding of the status in law of "Gilt Dragon" and its contents when the plaintiff first found it, of his position as its discoverer and of the consequences m law of his subsequent actions, some- thing also must be said about title to "Gilt Dragon" Only then will a closer examination of the Western Australian legislation become appropriate "Gilt Dragon", when discovered, was a derclict in the sense m which that expression 1s used in salvage law, that 1s to say, it was property which had been abandoned and deserted at sea by those who were 1n charge of 1t, any hope or intention of returming to it having long since been abandoned - Kennedy's Civil Salvage 4th Ed (1958) p.387 The description "derelict" 1s commonly applied to vessels afloat in the sea, in contrast to "wreck" which, in its orginal sense and unaffected by statutory definition, describes that which 1s washed ashore - wreccum maris - The King v Forty-nine casks of Brandy (1836) 3 Hagg 257, 166 ER. 401 at p. 409 per Sir John Nicholl However derelict extends beyond abandoned vesscls which are afloat and includes sunken vessels and their con- tents, at all events if not within the desciiption of ligan (or perhaps lagan - Con- stable's case 5 Co. Rep 106a, 77 ER. 218), but here there 1s no question of hgan and the scope of that "uncouth appellation', as Sir John Nicholl called it - at p. 409 - may be left unexplored Derelict has thus been applied to describe treasure from the foundered HMS Thetis (1835) 3 Hagg 229, 166 E.R 390 at p 393, the specie recovered from the vessel Schiller, wrecked off the Scilly Islands, was deielict unti its true owners by theii conduct of salvage operatrons resumed possession of it - The Cargo ex Schiller [1877] 2 P.D 145 at p. 148 per Brett LJ., and see generally The Tubantia [1924] P. 78 at p. 87. When derelict is the subject of successful salvage services rendered by a salvor that salvor becomes entitled to salvage reward. The activities of the plaintiff during 1963 and 1964 and which he wishes to resume in the future are a curtous form of salvage service; they are far 1emoved from those "'spon- taneous services, rendered 1n the protection of the lives and property of others" of which Sir Christopher Robinson spoke in The Calypso (1828) 2 Hagg 209, 166 E.R 221 at p. 224. Ils role has been less that of a conventional salvo: and more that of the secker after treasure tiove and that is perhaps reflected in the rs eee Se a Re ae ae - 25 - repeated claims to entitlement to reward as the finder of the "Gilt Dragon" which appear in the statement of claim It was just this aspect of the search for sunken valuables that led the Singapore ILigh Court in Sinton v. Taylor & ors [1975] 2 Lloyds Rep. 338 to deny to four divers who raised a cargo of mercury from a sunken Geiman U-boat the status of salvors; Chua J there said of them, at p. 345, "The evidence 1s clear that what the four divers did was motivated not by any intention to salve for the benefit of the owners of the submurine and the cargo but solely for their own benefit, The four divers did not render any service in the nature of salvage services In my view the four divers are not salvors and are not entitled to salvage reward" His Honour had also earlier observed, at p. 344, that there was no exposure of the mercury to imminent or pending danger, if not retrieved it "would not have been entirely lost'. English authority 1s, however, to the contrary. In The Tubanna Sir Henry Duke accorded the status of salvors to persons equally devoid of con- cern for the mterests of the true owners of a sunken cargo, said to comprise "treasure of large value'. It was in respect of their possessory rights as salvors that the plamtiffs were held entitled to relief by way of injunction against the owners of the vessel Semper Paratus, would-be second salvors all too ready to embark upon activities competitive with those of the plaintiffs Again in Mois v Lyonesse Salvage Co Ltd. [1970] 2 Lloyds Rep 59 DunnJ,in upholding the rights of one set of salvors as against other mtending salvors of sunken men-of-war, again off the Scilly Isles, apphed what had been said in The Tubantia and treated the 260 year-old wiecks as derelict and those engaged in their recovery as salvors In that case it 1s true that each of the competing salvors had prior authorization from the Secretary of State for Defence, the owner of the wrecks, but the salvors were, adopting for this purpose the words of Chua J in Simon v, Taylor & o1s, "motivated not by any intention to salve for the benefit of the owncrs .. but solely for thei own benefit" Nevertheless the plaintiffs' status as salvors was not doubted Moreover what was said by Chua J. concernmg the absence of imminent or pending danger does, J think, require further examination in the light of auth- orities to which I had occasion to refer in Fisher ». The Oceanic Grandeui (1972) 127 C_L R. 312 at pp. 323-327, I cannot regard the present plaimtuiff's activitics as dented the character of salvage services on the score of the absence of any such dangei to "Gilt Dragon" or her contents. The present plaintiffs activities in recovering "many valuable artifacts and coins from the wreck site" of "Gilt Dragon'' were, then, salvage services - 26 - and he was a salvor. Of what it was that he was a salvor requires further con- sideration, but before passing to this and to the question of the nghts to which, as salvor, he 1s entitled I turn for the moment to the question of the title to "Gilt Dragon". Title to "Gilt Dragon", at the tume of her discovery by the plaintiff, must, I think, for present purposcs be assumed to have remained in her original Dutch owners An express abandonment by them of title would, it seems, have been effective to determine ownership - Avrow Shipping Co v Tyne Improve- ment Commussioners [1894] AC 508 per Lord Macnaghten at p. 532, Lord Herschell LC at p 519, Lord Watson at p. 521 and Lord Morns at p 534, perhaps only because this is an exceptional kind of personality, a sunken wreck - Holdsworth's Mistory of English Law Vol. 7 p. 496 esp. footnotes 1 and 2 and authonties there cited - and sce criticism of the Ariow Siupping case in (1894] 10 LQR. 293. There is, of course, no evidence here of express aband- onment nor of the circumstances of the wreck, other than that 1t occurred in the uncharted waters of an undiscovered continent, there was, no doubt, noth- ing voluntary in the owners' failure ether to resume possession or even to dis- cover the ship's whereabouts and in these present proceedings the mere passage of so many years should not be treated as involving abandonment of title, even if m other circumstances the mere passing of time without any attempt to assert possession can perhaps be so regarded - see Annotation 63 ALR 2d. at p. 1372 I accordingly treat the original owners' title to the vessel as subsisting at the time of 1ts discovery by the plaintiff I would only add that white, in terms of salvage law, the vessel was then to be regarded as derelict that was in no sense inconsistent with its original owners' retention of title to 1t - Bradley y. H. Newsom Sons & Co [1919] A.C.16 atp 27 per Lord Finlay LC That the finder of derelict does not thereby acquire any title to 1t, even in the absence of any subsequent claim by the original owner, was, by the middle of the last century, well established by decisions of the Court of Admur- alty. It is the Crown, not the finder, in whom, im such circumstances, title comes to yest as droit of Admuralty In The Aquila (1798) 1 C. Rob 36, 165 ER. 87, Sir William Scott, in denying to a finder title to a derelict vessel found afloat, said that "what is found derelict on the seas, 1s acquired beneficially for the Sovercign, 1f no owner shall appear" - p 89 In The King v. Property Dere- het (1825) 1 Hagg 383, 166 E.R 136, the contents of a derelict found on the high seas had been appropnated by the finders and distributed among them but was ordered to be condemned as droit of Admisalty for want of clam by the owner, the finders instead receiving a moiety as salvage remuneration; and see The King y Two Casks of Tallow (1837) 3 Hagg 294, 166 E R. 414. Courts in the United States, regarding this rule as a post-1776 development of English law and hence inapplicable in their jurisdictions, have tn such circumstances generally taken a contrary view, tending to favour the finder rather than the sovereign State as acquiring title to wreck unclaimed by the true owner - see Annotation 63 A.LR. 2d. 1369 at p 1374, however modern instances of the adoption of the contrary, English, view also occur - State v Massachusetts Coy -27- (1956) 95 Sc 2d. 902 - State v. Flying "W" Enterprises Inc. (1968) 160 SE 2d 482. Wrecks do not, immediately upon discovery, pass to the Crown as drotts of Admiralty - The Cito (1881) 7P D. 5 atp 8 per Brett LJ. Derclicts are prima facie droits but ''do not become actual droits until a year has expu- ed" without claim by the true owner - HMS Thetis at p 393 - and see now Merchant Shippmg Act 1894 (Imp ) s. 523 and s. 525 and Navigation Act 1912 (Cth) s 308 and s. 309 and generally Mr. Marsden's article in 15 LQR 353. Any vesting of title to "Gilt Dragon" or its contents in the Crown would in any event not affect any mghts the plaintiff might have acquired to salvage reward, there would be a substitution of Crown title for the title of the origin- al owner but the nghts of the salvor to salvage reward would be unaffected. Accordingly, for the success of any claim by the plaintiff to salvage reward 1t matters not in whom title may now have vested. It 1s then as a salvor and not as the discoverer of the wreck site that any nghts can attach to the plaintiff in relation to "Gilt Dragon". The plaintiffs case, stripped of any misconceptions as to mghts as discoverer, must come to this that two distinct rights attaching to him as salvor have been abrogated by the Western Australian legislation, his mght to salvage reward for salvage services performed and his right to exclusive possession of the wreck site Growing out of this latter right to possession the plaintiff appears to assert, as adjuncts to it, ancillary mghts to continue in possession, to complete his salvage services and to have possession of the materials in fact recovered by the Museum. If these rights either do not exist in him, or, if they do, have not in fact been abrogated by the legislation no occasion arises for any challenge to the legislation as invalid, whether for repugnancy to or inconsistency with superior legislation or fo. want of cxtra-territorial legislative competence The entitlement to salvage reward for salvage services performed 1s the salvor's primary right but, as I shall seek to show, the Western Australian legislation does nothing to mpair this nght. The other rights claimed, those of exclusive possession of the wieck site and of the property already salved from it by the Museum stand in a different position. They are not, in my view, rights which the plaintiff 1s shown to possess, so that no question of their abrogation by the legislation can arise The salvoi's right to possession 1s one of a number of rights conferred upon a salvor accessory to and in aid of the earning and receipt of payment of the salvage reward Thus a salvor is given a maritime lien for salvage services performed, which may be enforced by proceduie in rem against the property saved, in aid to the earning of salvage reward the salvor 1s given a right to possession the natutc and extent of which will depend upon whether or not the property is derelict. If derelict, as was "Gilt Dragon", a salvoi who has entered into possession of it has been said to be entitled to maintain that possession even as against the subsequently discovered owner - Cossman v a+ = rae we eee - 28 - West (1887) 13 AC. 160 at pp. 180-181. That case concerned marine insur- ance and it was only for the light cast by the acts of salvors upon the question whether the property insured was a total loss, actual or constructive, that their Lordships had occasion to make passing observations concerning salvors' ughts to retention of possession. It is noteable that the owners in that case had no interest in the derelict, in the ensuing salvage suit the salvors were awarded the entire proceeds of sale of the vessel which amounted to considerably less than their expenses of the salvage service. In three eatlier cases the basis of a salvor's entitlement to possession of derelict had been discussed. Derelicts being prima facie droits of Adnuralty, Sir John Nicholl, in the Dantzrc Packet (1837) 3 Hagg 383, 166 ER. 447 ai p 448, described this nght of salvors to exclusive possession as being "for the benefit of the Crown, in the first instance, - but subject to a liberal remuneration". In the Lady !Worsley (1855) 2 Sp. Ecc. & Ad, 253, 164 ER 417 at p. 418, a decision of Dr Lushington still cited as authoritative in the current edttron of Kennedy on Civil Salvage, that learned judge denied a salvor's absolute right to possession of a derelict as against the owner once the salvage operation had been completed. he described any rule of that nature as "mischievous to the commercial interests at large, and to the property salved" and he refused all salvage reward to a salvor otherwise entitled to it because he had improperly excluded the owner from possession after having salved the property and before payment of any reward. He thereby reflected the view which he had carlier stated in the Glasgow Packet (1844) 2 W Rob 306, 166 E.R 770 at p 773, that "the foundation upon which salvors are at any time allowed to retain possession" 1s only to secure upon the owners the demand for salvage reward Likewise, at the earlier stage of actual performance of the salvage service, retention of possession 1s no doubt to be attnbuted to the law's desire to enable salvors, in the absence of incompetence, to earn their reward As agamst third parties a salvor who once enters into possession of derelict 1s entitled thcreafter to 1etain it during the salvage operations and, as earlier reference to The Tubantia and Moins v Lyonesse Salvage Co Ltd has shown, may in an appropriate case protect that entitle- ment by injunction Now the present relevance of a salvor's right to the exclusive possession of derelict is because the Westcrn Australian legislation has denicd to the plaintiff further access to "Gilt Dragon" and its contents at the wreck site If in doing so 1t could be said to have interfered with a nght of his to exclusive possesion and to those othe: asserted rights which I have earlicr descnbed as ancillary thereto. he might thereby show title to relicf, at least on some limited basis However, whateve1 may be the true state of the law as to the eatent of a salvor's entitlement to the possession of derelict, the present plaintiff cannot, in my view, make out any case for relicf upon this giound of entitlement to possession and this for two distinct but by no means unrelated reasons. The first 1s that he does not anywheie in his pleading allege his entry into possession, eee ee re nee ne ewe ee ee eee ee tee meen es - 29 - and this for good reason; such facts as are before the Court all suggest that nothing he has done has amounted to any sufficient entry into possession as would have entitled him to exclusive possession of ''Gilt Dragon" Secondly although I have descnbed the plaintiff as a salvor and "Gilt Dragon" as derelict 1t is not, I think, in respect of the vessel itself that the plaintiff has rendered salvage services but rather in respect of the artifacts he has recovered from the wreck site. Because of their close relationship the one to the other it will be convenicnt to cxamme at the one time these two aspects These are demurrer proceedings and the Court must deal with the matter on the footing of the facts alleged in the plaintiff's statement of claim Nowhere 1s there any assertion that the plaintiff ever obtamed possession of "Gilt Dragon" nor does the pleading permit of any such inference being drawn, rather the contrary. The wreck 1s described in par. I of the statement of claim as "'the remains of a ship" which foundered more than three hundred years ago in the open sea and in par. 6 the plaintiff's rediscovery of the wreck is spoken of as occurring by reason of his identifying "the wreck site as the one he had previously discovered" some years eailier In par. 7 the plaintiff confines himself to an assertion of having worked the wreck by himself and by his agents durmg a period of some twenty months until December 1964 and as having salvaged many valuable artifacts and coins "from the wreck site". All this is suggestive not of the assumption of possession of a sunken vessel but rather of the gleaning from an area of the seabed of the scattered remains of what was once a ship and its contents. But it 1s not only, nor perhaps principally, the physical state of the remains of ''Gilt Dragon" that is important but also the absence from the pleaded facts, accepted by the defendant for the purposes of the demurrer, of any assertion of possession of the wreck by the plaintiff That this is not merely a question of inade- quacy of pleading became apparent 1n the course of argument when, from both ends of the bar table, descmptions were given which made 1t clear that the plaintiff's use in his pleading of the expression ''wreck site" was wholly appropriate. It was a site which was discovered, identified as the location of an ancient wreck only by the presence of scattered objects, principally coins and items of cargo and equipment of metal and earthenware. The cnteria of possession of a sunken wreck were examined at con- siderable length both by Sir Henry Duke in The Tubanna and by Dunn J in Moris vy Lyonesse Saliage Co. Ltd Neither what 1s pleaded nor the addition- al information that emerged in the course of argument and appeared to be common ground comes even close to satisfying those criteria so as to estab- lish the plaintiff as having placed himself in possession of "Guilt Diagon"' or of its contents, save foi those particular items actually recovered by lum. This is a case in which, applying what was said by Su Ienty Duke in The Tubantia, at p. 89, there was no physical control "'applied to the res as a whole", there was no "complete taking'. we ee anne ne a ee ere eee ae wm wees qevmme mee = wee - 30 - If the plaintiff cannot make good his right to exclusive possession of "Gilt Dragon" he cannot complain e:ther of the retention by the Museum of articles which it has recovered from the wreck site during the past twelve years or of lis own exclusion from the stte by the terms of the Western Aust- ralian legislation; having no right to possession superior to that of any other member of the public he suffers no detriment recognized by the law as a result of the exclusion of members of the public from further dealings with the wreck site. There remains the question of his nght to salvage reward for articles which by his salvage services he has recovered from the wreck site Ihave said that the legislation in no way adversely affects this mght It may be noted in passing that, so far as the pleadings disclose, he has, during the twelve ycars which have passed since rendering these salvage services, done nothing to en- force lus 1ghts in this regard either by action in rem or in personam; instead he appears to have remained in possession of some, perhaps all, of the articles recovered from the wreck site. Be that as it may, an examination of the Western Australian legislation discloses nothing which in any respect deprives lum of his right to salvage reward Indeed the legislation is rather to the con- trary, being careful to avoid any interference with the plaintiff's possession or even title, if he could show any, to those articles, all of which he recovered before December 1964 when the Museum Act Amendment Act 1964 for the first time operated to prevent further recovery. That which was, by the amend- ing Act of 1964, for the first time vested in the Museum Board and of which it became entitled to possession is dependent upon the scope of the definition of "hustoric wreck" The Museum Act 1959, following the amendments made in 1964, defined "historic wreck" so as to include, inter alia, the "Gilt Dragon" but in the case of "equipment, machinery or other article of whatever class or kind belonging to or separated from or which came from any such ship", including any part of the hull, the definition 1s restricted to such articles as are "so lying", that 1s, are still on the seabed There are imfelicities in the drafting of this definition but it 1s at least clear that articles which, when the Act came into operation in December 1964, had already been recovered from the sea where not within the definition and did not vest in the Board Con- sistently with this concept, s. 20C of the amended Act provided that, while those having possession of '"'property that belonged to or was taken or 1¢- covered from" inter alia the "Gilt Dragon" and which was "taken or recovered fiom the territorial waters of the State below low water mark before the coming mto operation of the Afuseun: Act Amendment Act 1964" must notify the Board and may be obliged to make the property available for exami- nation by it, they are nevertheless entitled to have it returned to them after such examination, whereupon they are free to sell o1 otherwise dispose of it as they see fit The subsequent legislation recognized this position The Museum Act of 1969, by 11s definition of "historic wreck" in s_ 6, again 1estuicted it, in the case of parts of or articles that come from such wrecks, to those still lying on the -31- seabed and s 42 contained provisions to much the same effect as s. 20C of the earlier legislation, these provisions applied to objects recovered from scheduled historic wrecks before 18th December 1964, which was the date upon which the amending Act of 1964 was proclaimed to come mto operation Bys 6 of the Mazttune Archaeology Act of 1973 the property in and nght to possess- ion of all historic ships 1s vested m the Museum but again a distinction is drawn between such ships and relics derived from or associated with them. The pro- perty in and the right to possession of the latter is vested subject to two exclus- ions the first of which 1s here relevant, it applies to objects taken or recovered from certain scheduled lustoric ships, including "Gilt Dragon", and in respect of which the procedure provided for in s 20C of the Museuin Act 1959-1964 orins 42 of the Museum Act of 1969 had been satisfied and which immediate- ly prior to the coming into operation of the Act were in a person's lawful poss- ession. Such objects are thus excluded from vesting in the Museum. There are recurring references 1n the legislation to the fact that no com- pensation 1s payable by reason of any historic wreck being vested in the Board or in the Museum. While this no doubt adversely affects those, whoever they may be, who may have some title to historic wreck, whether as original owners or otherwise, it 1s neither directed to, nor can 1t sn any way affect the question of entitlement to, salvage reward, which alone is of concern to the plaintiff It follows that the plaintiff, being unaffected by the legislation in respect of his entitlement to salvage reward for objects already recovered, which rep- resents the only right recognized by the law which he has laid claim to, cannot by these present proceedings set in train an investigation into the constitutional validity of that legislation. He has, in the terms of the defendant's demurrer, failed to make out any cause of action and lacks all standing to seek the relief claimed There are, no doubt, unsiances in which reluctance may be felt in decid- ing a case upon what may seem over-technical grounds This 1s not, I think, such an instance The reason for the plamtiff's failure goes precisely to the merits of his action, to the extent that he asserts an entitlement to nghts as discoverer of this wreck he mistakes the law, he has no such rights Tlis nghts as salvor are confined to salvage reward in respect of the saving of the articles which he has m fact recovered and this is unaffected by the legislation which he seeks to attack. Were his attack on the validity of the legislation neverthcless permitted to proceed and were it then wholly to succeed those nghts would be no greater nor more secure than they now are In onty one respect would success advantage hun, he would then be fice, albeit in competition with any other would-be treasure seekers and at his own eapense, to resume, after a lapse of twelve years, the search for such relics, if any, as may still remain at this wreck site and this not with any prospects of gaining title to them but only so as then to seck, for the salying of them, such salvage reward as a court might see fit to award him wee ee aoe eee - 32- It may, in conclusion, be observed that were any challenge to the West- ern Australian legislation to succeed it would be unlikely to result in any change whatever in the present position as far as concerns the Muscum's custody of historic wrecks and relics The present legislation now vests the property and right to possession of these historic wrecks and relics in "the Muscum on behalf of the Crown". Were the plaintiff to succeed in erther of his contentions that this legislation falls for repugnancy or for mconsistency it would, in my view, in all but the case of the Maritime Archacology Act of 1973, be because the wreck and relics are the property of Her Majesty - Merchant Shipping Act 1894, s. 523 - or of the Commonealth - Navigation Act 1912,s 308 Because their value les predomimantly in their local historic interest 1t seems improbable that sm that event cither the British Government in particular or the Commonwealth Government would direct any change in thei existing custody by the Western Australian Museum. Indeed the Solicitor- General of the Commonwealth informed the Court that the Commonwealth informed the Court that the Commonwealth had already procured from the Netherlands Government a conveyance of its interest in these historic wrecks to the Commonwealth and that the Commonwealth intended that the Museum should retain possession of them. The Act of 1973, viewed in the light of the Seas and Submerged Lands Act 1973, gives rise to distinct and interesting questions but their resolution would be no more likely to affect the existing status of these historic wrecks, nor would the plaintiff's remaining argument, as to lack of legislative competence. which, as at present advised, I would in any event be disposed to deteimine in the defendant's favour. I would for the reasons stated allow the defendant's demurrer and dis- muss the plamntiff's action. MASON J. By huis statement of claim the plaintiff, who is a marine salvage contractor, claims to have been the finder and to have worked the wreck of the Gilt Dragon which 1s situated in the sea 2.87 nautical miles from low- water mark on the coast of Western Australa north of Perth and to have recovered aitifacts and other materials from the wreck. He ceased to work the wreck in December 1964 when the Museum Act, 1959-1964 (W A.) came into operation. This Act purported to vest property in the wreck of the Gut Dragon in the Western Austialian Museum Board ("the Board'') on behalf of the Crown (s, 20B(2)), made it an offence for a person without the consent of the Board to alter or remove the wreck (s 20B(5)), required a person having in hus custody or control property from ihe wreck to give notice of the fact to the Board and prohibited the disposition without the consent of the Board of such property (s. 20C(1) and (2)). Subsequently, the AMaritune Archaeology Act, 1973 (W A.) purported to vest property in and the nght to possession of all historic ships (including the Gilt Dragon) in the defendant on behalf of the Crown (s. 6(1)) Likewise, oa age ee ee - 33- this Act purported to vest property in and the nght to possession of relics associated with an histonc ship in the defendant on behalf of the Crown (s 6(2) and (3)). It was made an offence for a person to alter or remove a maritime archaeological site or ship (s. 7(2)). Under both Acts it was provided that no compensation was payable to any person in respect of the vesting of property in the wreck in the defendant or its predecessor the Board. The plaintiff alleges that the defendant and 1ts predecessor the Board, in reliance upon the powers conferred by the Afuseum Act and theMaittime Arch- acotogy Act, took possession of the wreck and continued to work it, recovering yaluable objects from it The plamtiff docs not assert that he was in possession of the wreck at any time before the Museum Act came into operation. Instead, he claims that he was entitled to rembursement by way of salvage for work done 1n relation to the wreck and for objects recovered from it up to December 1964. He also claims that he would have engaged in further salvage operations after that date had it not been for the enactment of the relevant provisions of the Afuseum Act and later the Maritime Archaeology Act The plaintiff's case is that the Acts have affected him adversely in denymg his claim for reimburse- ment for salvage actually undertaken, in prohibiting his undertaking further salvage opcrations, in mmposmg upon him an obligation to notify the Board and the defendant of the existence of objects recovered from the wreck of the Gut Dragon and in prolubiting him from disposing of these objects. On the assumption that the plamtiff would have a claim fo. reimburse- ment by way of salvage for objects recovered from the wreck, an assumption which I shall examine presently, the operation of the Museui Act and the Marttume Archaeology Act in relation to the plaintiff is such as to give him, in my opmion, a sufficient /octts stand: to seek a declaration of mvalidity of the two Acts The rule 1s generally expressed in the proposition that a person not affected in hus private nghts may not sue for declaratory relief (London Association of Shipowners and Brokeis v. London and India Docks Joint Comunittee, [1892] 3 Ch. 242, London Passenger Tiansport Board v. Moscrop, [1942] A C. 332, at p. 344, and see Zamir- The Declaratory Judgment (1962), p 247 et seq.). Sometimes the rule is expressed more liberally, as it was by Gavan Duffy CJ, Starke and Evatt JJ in Anderson v The Commonwealth (1932), 47 C.LR 50, at p 52, when their Honours said that the nght of an individual to bring an action for an wiftra vues declaration does not exist "unless he establishes that he is 'more particularly affected than other people' (see Brice on Ultia Vires, 2nd ed, p. 366)" The rule is said to be directed against multiplicity of actions. In truth st reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it 1s for the courts to decide actual controversies between parties, not academic or hypothetical questions. Reftection on the considera- tions which underlic the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus - 34- stand: However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by by the ordinary citizen if the litigation ends in his favour. The cases are infini- tely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient nm another He1e the plaintiff docs not seek performance of a public duty, nor does he assert that he will suffer special damage through interference with a public mght - cases which are notorious for their difficult- ies. Here the legislation, if it is valid, deprives the plaintiff of a right of re- imbursement which he would otherwise have or be entitled to claim. It also imposes obligations upon him to which he would not otherwise be subject. This 1s enough to support /ocus standi in action for a declaration of invalidity. As Latham CJ. said, with reference to Commonwealth legislation, in Toowoomba Foundry Pty. Lid vy The Commonwealth (1945), 71 C.L.R. 545, at p. 570. "It 1s now, I think, too late to contend that a person who 1s, or in the ummediate future probably will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action in thus Court for a declaration that the legislation 1s invalid." See also Crouch v. The Commonwealth (1948), 77 C.L.R. 339, at pp. 348- 349, 353-354, 357, 359-360 There the fact that the plaintiff could not carry on his busmess as a car dealer without obtaining permits under the regulations to buy cars was held to give the plaintiff a locus stand: to chall- enge the validity of the regulations No doubt the plaintiff could bring an action claiming salvage in respect of objects which he actually recovered from the wreck and in those proceed- ings assert the invalidity of the legislation which he now challenges. But this is not to gamsay that he has an interest in the subject matter of the instant litigation, rather, it 1s to emphasize the existence of that interest. The avail- ability of alternative proceedings goes not to the question whether the plain- tiff has an interest but to the exercise of the court's discretion to grant dec- laratory relicf, this being a separate issuc which has not been argued 1n this case. In any event the serious questions of constitutional validity raised here are more conveniently and appropriately dealt with in a plea for declaratory relief than in proceedings for salvage where difficult questions as to parties would necessarily complicate the case Apart altogether from the plaintiff's claim for remuneration for salvage actually undertaken, the frustration by the legislation, if it be valid, of his plans to continue to work the wreck and salvage its contents gives him, in my opinion, a suffictent /ocus stand: Again, in this respect the case 1s in- distinguishable from Crouch v The Commntonwealth The plaintiff 1s pro- —— = - 35 - hibited by the legislation from continuing his activities which are operations of business carned on for profit without the consent of the defendant or sts predecessor and that, in this case, amounts to a total prohibition because it 1s inconceivable that consent would have been given to the plaintiff to work the wreck in his own right for his own benefit I need only add that "once any interest appears it is enough on general demurrer" (Crouch vy The Commonwealth, at p. 357) For these reasons I conclude that the plaintiff has locus stand: to maintain the suit. According to the allegations contained in the statement of claim - and beyond those allegations we cannot go on the hearing of demurrer - the wreck of the Gut Dragon is the remains of a ship which foundered in the year 1656 and it 1s and was at all material times submerged by the sea and located in the sea-bed. On these facts the Gilt Dragon 1s a derelict, for it 1s well accepted that a ship which has foundered and which 1s at the bottom of the sea 1s, together with 1ts cargo, a derelict (Hf S Thetis (1833), 3 Hage Adm 14, 166ER. 312; affirmed (1834), 2 Knapp 390,12 E R 533, The Cargo ex Schiller (1877), 2 P.D. 145, at p 148, The Tubantia, [1924] P. 78, at p 87), the principle being that a ship which has been abandoned by master and crew without any mtention of returning to tt 1s a detelict Although by the Roman law and the early common law the nght of the Sovereign to derelict property on the seas was absolute (The Aquila (1798), 1 C. Rob. 37, at p 48; 165 E.R. 87, at p 91 n), it became established that an owner could 1eclaim his property in the derelict within one year and a day (see 3 Edw. I,c. 4,17 Edw UH, c.11) By the nineteenth century 1t was well settled that where a ship was derelict the property in it and in its caigo prima facie belonged to the Crown as a droit of Admiralty and it became an actual droit unless the true owner clauned 1¢ within that time (Carver's Carriage of Goods by Sea, 5th ed. (1909), p. 580, HAMS Thetis, The Aquila, The King v Two Casks of Tallow (1837), 3 Hagg. Adm 294,166 ER 414, State of Flonida v. Massachusetts Company (1959), 63 ALR (2d) 1360), at pp. 1364-1365) As the Gilt Diagon's character as derelict 1s not in dispute the distinction between derelict on the one hand and wreccum manis, Jagan, Flotsam and jetsam, on the other hand, 1s immaterial. On this toptc see RG Marsden, "Admitalty Droits and Sulyage - Gas Float Whitton, No. IT" (1899), 15 LOR 353, Su LHenry Constable's case (1601), 5 Co. Rep. 106 a, 77 E.R 218 The derelict may nevertheless be the subject of salvage, whethei title to it be vested as a dioit in Admiralty or in the tine owner who has claimed it within the prescribed time. The position was explained by Sir John Nicholl in 7AM S Thetis, 166 ER., at p 393, with reference to the specie which was recovered from the wreck "This treasure, though it never became a droit, was a derelict, it was out of the possession of any person in right ----r - %- of the owner - it was at the bottom of the sea and fished up from it . but within the tume prescribed by law, the owners or their representatives appeared and claimed the property, and upon proot of ownership it was restored to them - but subject to salvage, and the salvage is in respect of montes arising out of derelict." It is sufficient to ground a clam for salvage that the salvor save the ship, its cargo or apparel form the perils of the sea or that he recover the ship, rts cargo or pait thereof. Salvage 1s not limited to recovery of property in or from a ship which 1s actually in distress, 1t extends to recovery of property in or from a ship which has lain at the bottom of the sea for a long time (AL AE S. Thetis, Morris vy Lyonesse Salvage Company Ltd, [1970] 2 LLLR. 59, at p 61) Although a salvor must show that he is in possession of a derelict to entitle him to exclude competitors and to bring an action of trespass (Morris v. Lyonesse Salvage Company Ltd ), possession of the entire derelict is not an essential element m a claim for salvage, 1t is enough that the salvor recovers part of the wreck, whether it be part of the ship, its apparel or cargo. The measure of his rermbursement will then be adjudged by the court. Whether contributing to the recovery of a wreck, as by mere finding, creates an entitle- ment to salvage 1s a question as yet undecided - see The Ameitcan Farmer [1947], 80 LLL.R 672. cf Navigation Act 1912 (as amended), s. 317. Even if it be correct to say (and I have some doubt as to its conectness), as was held in Svnon v Taylor, [1975] 2 LLL.R. 338, that recovery by divers of cargo from a sunken vessel motivated not by any intention to salve for the owners, but solely for the benefit of divers, 1s not salvage, the allegations in the statement of claim do not give the plaintiff's opetations such a character. To all intents and purposes the plaintiff has a claim for salvage which can be litigated and it is on this footing that I have held him to have locus stand The plaintiff's first ground of attack on the State Acts 1s that they are mvalid because they lack a sufficient nexus or connection wsth the State of Western Australia, it having been decided in The State of New South Wales v. The Commonwealth (1975), 50 A LJ R. 218 (the Seas and Submerged Lands case) that in general the boundaries of the States end at low-water mark. At the same time 1t may be accepted that the State of Western Austialia-has power to enact laws having an extra-territonal operation, in particular laws having an application to persons in territorial waters and beyond. There have been many recent expressions of opinion in this Court to this effect, all based on the decisions of the Judicial Committee in Croft v. Dunphy, [1933] AC. 156 - see Bonser v La Macchia (1969), 122 C.L R. 177, at pp. 189, 224-226, Reg v Bull (1974), 48 ALIR 232, at pp 243, 256, 259, 260 and 264, Seas and Submerged Lands case, at pp 222, 263-264 and 274, Pearce y Florenca (1976),9 A.LR 289, The Museum Acts and the Marntune Archaeology Act deal with historic wrecks, vesting title to them initially in the Board and later in the defendant . - 37 - on behalf of the Crown, conferring powers on the Board and the defendant with respect to the wrecks and their contents the exercise of which is designed to ensure their preservation for the benefit of the State and sts citizens As such the Acts are Acts for the peace, order and good government ot the State and have a sufficient relationship with the State. The Solicitor-General for the Commonwealth submitted that any State law dealing with the sea-bed below jow-water mark as a topic was necessauily invalid as touching something outside the boundaries of the State There is the question, still outstanding, whether a State law relating to the sea-bed is invalid m consequence of the Seas and Sub- meiged Lands Act 1974, but it is certainly not invalid on the ground that it Jacks a sufficient nexus with the State State laws relating to fishing and fisher- ies in territorial waters and beyond are examples of laws having a valid extra- terntorial operation, there being a sufficient connection with the peace, order and good government of the State. Likewise, in my opinion, there is a suffic- yent connection between legislation regulating the ownership or possession of historic wrecks on or nea the coasts of Western Australia and the peace, order and good government of the State. The plaintiff's second ground of attack was based on alleged repugnancy between the provisions of Pt 1X of the Meichant Shipping Act, 1894 (Imp } and the State Acts, a repugnancy which, it 1s argued, brings into operation s. 2 of the Colomal Laws Vahdity Act, 1865 (Imp.) Again, in my opinion, the plaintiff's submission 1s incorrect and this because the relevant provisions of the Merchant Shippmg Act have no application to derelict in territonal waters off the coast of Western Austialia. The Merchant Shipping Act 1s n force m Western Australia. It came mto force in the colony because it applied geneually to British possessions (see Bistricic »y Rokov (1976), 11 ALR 129) For the purposes of Pt IX of the Act, which deals with "Wreck and Salvage", the expression "wreck" includes 'Setsam, flotsam, lagan, and derelict found in or on the shores of the sea or any tidal water" Scction 523 provides "Her Majesty and Her Royal successors are entitled to all unclaimed wreck found im any part of Her Mayesty's domimuons, except in places where Her Majesty or any of her Royal predecessors has granted to any other person the nght to that wreck " There 1s a very 1eal question as to the geographical extent of the application of this section and other sections in Pt. IX Many provisions are expressly limited to wrecks on or near the coasts of the United Kingdom o1 to wrecks "within the limuts of the United Kingdom" (ss 511, 513-515, 517-519, 521, $25, 531 and 535) Other provisions, though generally expressed, are associated with provisions expressly so limited or with the powers and duties of recviveis (officers appointed for districts in the United Kingdom) and must themselves by implication be construed as being likewise limited (ss 512, 516, 520, 522, - 38 - 524, 526-528, 530, 532-533, 536-537) What is important for present pur- poses 1s that s. 523, dealing with unclaimed wreck, whether 1t be intended to apply to wreck outside the United Kingdom, is limited to wreck found in Her Mayesty's dominions. The Seas and Submie:gd Lands case decided that gener- ally speaking land below low-water mark 1s not within the boundaries of the Australian States. Accordingly, it forms no part of Her Majesty's dominions Section 523 therefore has no application to the Gut Dragon, situated as 1t 1s outside the boundarics of the State of Westen Australia. Other provisions in Pt IX headed 'Vessels in Distress" (ss. 510-517), "Dealing with Wreck" (ss. 518-522), "Unclaimed Wreck" (ss 523-529), ""Removal of Wrecks" (ss. 530- 534) and "Offences in respect of Wreck" (ss. 535-537) are, with few except- ions, 1f any, limited in their geographical application, in the manner already explained, to wrecks on or near the coasts of the United Kingdom or within the hmits of the United Kingdom They therefore do not apply to the Gilt Dragon. Do the provisions of Pt VII of the Navigation Act relating to "Wrecks and Salvage" apply? That is the next question. The provisions of Pt. VII, Div. 2 - "Wreck" with 1ts sub-headings "Ships in Distress", "Dealing with Wreck", "Unclaamed Wreck" and "'Offences in respect of Wreck", and Div 6 - "Removal of Wreck" are remarkably similar to the provisions of Pt. IX of the Merchant Shipping Act which have already been discussed. Similar powers and duties are prescribed for receivers 1n relation to ships which are wrecked, stranded or in distress (ss 296-301). So also a person finding or taking poss- ession of wreck ts bound to give nofice to the recesyer (s. 302) and a person other than the owner shall on demand deliver a wreck to the receive: (s 303). The owner of a wreck in the possession of the receiver, upon estab- lishing his claim to the satisfaction of the receiver within one year of the receiver taking possession, shall, upon paying the salvage, fees, and expenses due, be entitled to the delivery up of the wreck or the proceeds theieof (s. 305) The counterpart tos 523 of the Merchant Shipping Act is s. 308 which provides that "The Commonwealth shall be entitled to all unclaimed wieck found in Australia" It 1s made an offence to take into a place out of Aust- ralia "any wreck found on or near the coasts of Australia" and to there sell it (s 312) Persons assisting any ship which "1s wrecked stranded or in distress at any place on or near the coasts of Australia or any tidal water within Australia" or saving any wreck are entitled to the payment of salvage from the owner (s. 317). "Wreck" is defined by s 294 of the Navigation Act so as to include 'Yetsam, flotsam, lagan, and derelict found in or on the shores of the sea or any tidal water, and any articles or goods of whatever kind which belonged to or came from any ship wrecked, stranded, or in distress, or any portion of the hull machinery or equipment of any such ship". Section 296 provides that "Where any ship is wrecked, stranded, or in distress at any place on or near the coasts of Austra.ia .. .", the receiver of the district shall proceed to that - 39- place, take command of all persons present and give directions for the preserv- ation of the ship and of the lives of the persons belonging to the ship, and of the wreck. The similar expression "whenever a ship 1s wrecked, stranded, or in distress" 1s found in ss. 298 and 299 - see also ss. 317 and 329 Although the present tense may be read as a reference to the future, if 1s more natural to read the expressions m ss. 296 and 298 as referring to all ships which happen to answer the stated description once the Act comes into operation, notwithstand- ing that they were wrecked, stranded o1 in distress before the commencement of the Act It 1s a natural use of language to say that a ship wrecked in 1656 1s one which 'is wrecked =. on or near the coasts of Australia", so long as the condition of the ship continues to answer the statutory description. To so con- strue the Act 1s not to give 1t a retrospective operation, the Act regulates future conduct in relation to ships which are wrecked The legislation 1s prospective, generally applying to future conduct affecting ships wrecked before or after 1912. Thus, s. 308 appears to relate to unclarmed wreck found in Australia after the commencement of the Act. To the objection that s 301 is inconsistent with this interpretation I would make this answer The section provides for the receiver 01, 1n hus absence, the collector or a justice, to conduct an examination of witnesses on oath in relation to certain matters "Where any ship 1s or has been wrecked, stranded, or in distress". The use of the perfect as well as the present tense does not indi- cate that the present tense is intended to signify only those ships which became wrecked, stranded or distressed after the commencment of the Act The employment of the perfect tense in this section - a usage not repeated elsc- where in the provisions now under consideration - appears to me to be designed to authorize an examination of witnesses in relation to a mamtume casualty or emergency which occuried before the commencement of the Act. where the condition of the ship no longer continues lo answer the statutory description No doubt 1t was considered necessary or desirable to provide for the examina- tron of witnesses to a past maritume casualty or emergency, though it did not result un a ship being wrecked, stranded or in distress after the commencement of the Act, c.g a shup in distress which was saved before that date The scope of the examination extends to "The occassion of the wrecking, stranding, or distress of the ship" (s 301(1)(e)) Its importance 1s illustrated by the circum- stance that a copy of the evidence 1s to be sent to the Mimster (s. 3012). However, many provisions in Pt. VII are expressed to have a limited geo- graphical operation, reflecting in their application to Australia in Leu of the United Kingdom the limitations already discerned in the provisions of the Merchant Shipping Act Some are confined expressly or nmphedly to wrecks on or near the coasts of Australia or to tidal water within Australia - ss 296- 300, 305, 312-314 and 317 Other sections are confined to wrecks found or of which possession is taken in Austialia or within the lmmits of Australia - s. 301 (to which I have 1eferred), s. 302 (which obliges a person to give notice to the limits of Australia" or has brought a wreck withm those hmuits), s 308 (to receiver, stating that he has found or taken possession of a weck "within the lmmuts of Australia" or has brought a wreck within those limits), s. 308 (to a - 40- which I have already referred) and s 309 (which empowers the receiver to sell unclaimed wreck). Although ss 296-300 appear to extend to wrecks outside the boundar- res of Australia, that 1s, to wrecks "'at any place . . . nea: the coasts of Aust- ralia", they relate in the main to the preservation of life and property in the case of ships stranded or in distress. Moreover, they appear below the heading "Ships in Distress" and I therefor do not regard them as having any applica- tion to the Git Dagon which by no stretch of the smagmatton could be classi- fied as a ship in distress at the relevant times On the other hand, ss. 302 and 308 (and perhaps the sections with which they are associated) are limited to wrecks situated in Australia. In consequence of the Seas and Subinerged Lands case they have no application to the Gilt Dragon In contradistinction, ss. 312 and 317, being expressed to apply to wrecks on or near the coasts of Australia, have an application to the Git Dragon The application of s. 317 is of importance because it confers against the owner a statutory nght to salvage on a person saving any wreck, and by definition "wreck" includes articles or goods which come from a wrecked ship (s. 294). The limited application which I would give to the provisions of the Navigation Act obviously bears on the problem of inconsistency between that Act and the State legislation. However, 1t 1s necessary to refer, first to the validity of the relevant provisions of the Navigation Act. To the extent to which they relate to wrecks situated outside Australia they are in my opinion supported by the external affairs power (Commonwealth of Australia Consti- tution, s 51(xxix)) - see the Seas and Submerged Lands case, at p. 264. It 1s possible that the provisions may also be supported by ss. 51() and 98 of the Constitution, but, as the Court found in State of Victoria y The Common- wealth (1937), 58 C.L.R 618, 1t 1s not desirable to venture an answer to this difficult question when the problem of inconsistency 1s otherwise capable of resolution. It may well be that there is an mconsistency between some of the pro- viions of Pt VII of the Navigation Act, assuming them to be valid, so far as they relate to wrecks situated within Australia and some of the provisions of the State Acts. But that 1s not a matter which is germane to this case where we are concerned with the application of Commonwealth and State laws to a wreck situated in territo1al waters. The crux of the problem of inconsistency as it arises in this case 1s that ss. 312 and 317 are the two sections in Pt. VII which unequivocally apply to wrecks below low-water mark and specifically to the wreck of the Git Diagon However, they do not deal with the ownership or title to wreck. That 1s a topic with which other provisions in Pt. VII deal, notably s. 308, but these provisions, including s. 308, do not catend to wreck below low- water mark. Accordingly, as Pt VII of the Navigation Act contains no pro- vision dealing with the ownership of wrecK in territonal waters, there 1s no -41- foundation for a conclusion that provisions of State law dealing with the ownership of wreck in those waters are inoperative on the ground of inconsist- ency. The possibility that there 1s an inconsistency between s. 308 and the pro- visions of State law to the extent to which they deal with ownership or title to wreck situated within Western Australia does not affect the question now under consideration because any inconsistency within the meaning of s 109 of the Constitution results in the State law being rendered operative only to the extent of the inconsistency. Specific mention should be made of ss 303 and 305 of the Navigation Act Even if they should be understood as applying to wrecks situated below low-water mark, they do not attempt to divest ownerslup in wrecks from one person to another. The references which they make to "the owner" of a wreck assume that a person may be able to establish title to the wreck in virtue of the general law or by some other law. There is nothing to suggest that the word "owner" is used in some restricted sense so as to exclude a change in owner- ship of the wreck wluch occuis after the slup foundered or was stranded The existence of a State law divesting title from the original owner of a wreck 1s therefore not inconsistent with ss. 303 and 305. The consequence 1s that s. 317 confers on the plaintiff, 1f he can make out the case pleaded and subject to the questions which remain to be con- sidcred, a nght to recover salvage from the owner of the Gilt Diagon. The reference in s. 317 to the owner of the wreck, like the similar references in ss. 303 and 305, does not affect the operation of a State law which vests ownership of or title to the Gilt Dragon in the Crown in nght of the State or in an instiumentality of the Crown in right of the State. It does, however, through the medium of s. 109 of the Constitution deny operation to any State law which conflicts with the entitlement to salvage conferred by s. 317 ttself In the result s. 20B(2) of the Afuseum Act, 1959-1964 was effective to vest title in the Gilt Diagon m the Board on behalf of the Crown in right of Western Australia, subject to the plamtiff's claim for salvage unders 317 Although rt is a matter which may have no practical relation to the controversy between the parties, if 1s my opinion that there 1s no inconsistency between the pro- visions of the Navigation Act and the provistons of s. 20A of the Museum Act dealing with notificatton of the finding of an historic wreck and s. 20C of the same Act umposing a restriction on the sale of property 1ecovered from an lustonc wreck For the same reasons there 1s no inconsistency between the Navigation Act and s. 40 of the Afuseum Act, 1969 to the extent to which it relates to histone wiecks below low-wate1 mark, in paiticular s 40(3) which vests the lustoric wrecks mentioned in the Schedule, including the Git Dragon, in the defendant. The same conclusion must be reached in relation to s 42 of the same Act which ss simular in substance to s. 20C of the Afuseurm Act, 1959-1964 re re ee i ere ee epee Ren me we renee me ae ee ee -42- Likewise there 1s no inconsistency between the Navigation Act and ss 6 and 7(2) of the Afaritime Aichaeology Act, 1973 to the extent to which these provisions apply to historic ships and maritime archaeological sites below low- water mark. Section 6 1s effective to vest in the defendant title to the Gut Diagon, formerly vested by the Museum Act m the Board. Ands 7(2) is effective, according to its terms, to deem title to the Gilt Dragon to have previously been vested in the Board and later in the defendant on the coming into operation of s 42 of the Museum Act, 1969. The final question to be considered is that of an alleged inconsistency between the Seas and Submeiged Lands Act and the State legislation. I do not agree with the submission that this Court in the Seas and Submerged Lands case held that the Act conferred on the Crown in right of the Common- wealth proprietary rights in the sea-bed. No member of the Court so decided and two members of the Court expressed the contrary view (at pp 266 and 275). For my part, I adhere to the view which I then expressed (at p. 264) according to which the source of Commonwealth legislative power with re- spect to the sea-bed is to be found ins 51(xxix) of the Constitution. There is to my mind no :mconsistency between the Seas and Submerged Lands Act and the provisions of the Museum Acts which deal with property in, and title to, wrecks However, the Maritume Aichaeology Act stands ina different situation. By s 6(1)1t purports to vest property m and the nght to possession of all historic ships and mantime archaeological sites in the def- endant on behalf of the Crown. ''Marntime archaeological site" 1s defined by s 4(1) so as to include areas of the sea-bed The provisions of s. 6 of the Maritune Archaeology Act, to the extent that they relate to the maritime archaeological sites, fall outside s. 16(b) of the Seas and Submerged Lands Act and are inconsistent with that Act. To that extent s. 6 of the Maritime Archaeology Act 1s inoperative but this leaves operative so much of s 6 as vests title to the Gilt Dragon in the defendant. In the result, subject to making a declaration that s. 6 of the Maritune Archaeology Act is inoperative in its apphcation to maritime archaeological sites, I would allow the demurrer. In reaching this conclusion I leave aside the fact of the Altstoze Shupwrecks Act 1976 (Cth) which came into operation after the commencment of the action and after the demurrer was heard by this Court 2. JACOBS J. What remains of the Gilt Dragon and its contents, sunk s.87 % nautical miles off the west coast of Australia in 1656, 1s maritime property and is derelict in the sense in which that word is used mn maritime law Such derelict 1s to be distinguished from 7es derelicta o1 res nullius m the sense of the common law, a chattel abandoned by the owner with no intention of re- taining his property therem Such a chattel when it is thrown ito the sea - 43- belongs to a finder. It is neither derelict maritime property nor, if gold or silver, is it treasure trove. Blackstone Book I Ch 8. XIII. The principles applicable thereto must be kept distinct from maritime derelict, which 1s a thing abandoned and deserted at sca by those in charge of 1t without hope on their part of recovering it and without intention of returning to it (see Kennedy on Civil Salvage, 4th ed., at p. 387) but with no intention on the part of the owner of abandoning his property therein. The history of derelict in English maritime law is a long and somewhat complex one It is the subject of a most interesting article by Marsden "Admuir- alty Droits and Salvage" (1899), 15 LQ.R.353. The learned author traces the clam of the English Crown tn its office of Admiralty to droits on findalls, which include derelict of the sea, the early recognition of the nghts of salvors and the later recognition of rights in the owner "Soon after the High Court (of Admiralty} records begin" (in the 16th century) "we find that its practice was for the finder of goods at sea to present them on oath, with their appraised value, and either to bring in half the goods, or to pay half their value into court. This practice continued until the present century." p 357 The century in which Marsden wrote was the 19th century The change whereby the goods were to be held by the Receiver General of Wrecks and the reason therefor - the disproportionate cost of condemnation proceedings - and the statutes which brought st about are described at pp 361-362 There are in Marsden's historical survey a number of references through the centuries to search for sunken treasure: sec pp. 359,36] Marsden summarised huis survey at pp. 364- 365. "On the whole the history of the law of droits and salvage seems to be this Originally sea casualties belonged to the finder. Afterwards, as the power of the Crown increased, the Crown claimed and enjoyed them. when 1t could get them. So rarely, however, did it get them, by reason of embezzlement and concealment by the finder, that 1t was found advisable to concede one-half to the finder This phrase of the law 1s contemporary with the charter of Edward I to the Cinque Ports Subsequently the nghts of the onginal owner were recognized, and, as against lum, - and also as against the Crown, the finder was compelled to accept a reasonable reward for hus pains In the case of unclaimed goods the right of the finder to one-half con- tinued to the last century, but was reduced to one-thurd in or before 1836." It is a question whether s. 523 of the Merchant Shipping Act, 1894 (Imp ) or ss. 302 - 309 of the Navigation Act 1912-1972 (Cth.), or any of them, apply to a wreck (which 1s defined in the respective Acts to include derelicts) where the vessel was wrecked or became derelict before the passing of the respective Acts. I shall leave that question for the moment -44- Apart from that legislation, the position would appear to be as follows The true owner of this mantime property, the remains of the Gilt Dragon and its cargo, is the successor or successors in title of the owners at the time the vessel foundered and sunk, said to be the Dutch East India Company. Subject to any claim by the true owner, the Clown in 1ts office of Admuralty 1s under the law of the prerogative entitled to the derelict as a droit of Admiralty. Any finder of the derelict 1s entitled to clam salvage or reward provided that he reports his find The amount thereof in modern times depends on the princi- ples developed in crvil salvage cases Derelict 1s no longer subject to any fixed distinct rules. See Kennedy on Civil Salvage, 4th ed , pp. 178-180. A person who locates a ship in danger and distress 1s entitled to salvage, if his efforts have contmbuted to the ultimate saving of ship or cargo See The American Farmer (1947), 80 LLL.R 672. There 1s no reason why this pnnciple should not also apply to derelict where the Jocation of the derelict by the claimant 1s a cause of the recovery of the property. This would always be a question of fact in the salvage proceedings. The Plaintiff alleges in his statement of claim that he was the finder of the wreck; that he first found it on or about 6th August 1957, that subsc- quently he was unable to locate 1t for several years during which he searched for it by all available means, that in 1963 he led an expedition of search and on or about 14th Apnl 1963 rediscovered the wreck If it were not for the Western Australian legislation vesting the ship and articles recovered there- from in the Museum (with exceptions in the case of articles which are not applicable sees 6(2)(a) of the Maritime Archaeology Act, 1973 and its First Schedule) the plaintiff as the person who located the derelict would be entitled to claim salvage in a court of Admualty on all property recovered from the derelict, in the past or in the future. If 1f was condemned unclaimed as a droit he would be entitled to an appropnate reward out of the droit ef. The King v. Two Casks of Tallow (1837), 3 Hage 294, at p 299. Whether or not he would recover salvage would be a matter for determination by the Court in the light of the evidence as to the conti:bution which lus location of the derelict made to the salving of 1t. But his mght to claim 1s sufficient to give him a standing to challenge the validity of the Western Australian legislation which stands 1n the way of such a claim. - By s 6 of the Seas and Submerged Lands Act 1973 (Cth ) sovercignty in respect of the territorial sea 1s vested in and exercisable by the Crown in night of the Commonwealth. Thereby in respect of the territorial sea all prerogatives of the Crown are vested in and exercisable by the Crown m nght of the Commonwealth. Sovereignty vested in the Crown in right of the Commonwealth in re- spect of the territorial sca carries with it the sovereign ught of the Crown to domunion over the teiritorial sea and to dominion over those things in on or under the sea over which by any law, including the law of the prerogative, " -45- the Crown has dominion A derelict is such a thing subject only to the claim of the true owner Unless there 1s a statute of the Commonwealth which affects this prerogative, then this prcrogative right 1s vested in the Crown in nght of the Commonwealth Section 16(b) of the Seas and Submerged Lands Act 1973 (Cth ) does not save an act of the State of Western Australia in so far as the latter expressly vests dominion, which is an aspect of sovereignty, or a sove- reign right of dominion otherwise than as provided in preceding provisions of Part II of the Seas and Submeiged Lands Act Section 6 of the Maritune Aich- aeology Act, 1973 (W A.) in so far as it vests in the Western Australian Museum on behalf of the Crown in right of Western Australia the property in all histone ships and manitime archaeological sites (as defined or described in ss. 3 and 4 of the Act), is not saved by s. 16(b) of the Seas and Submerged Lands Act 1973 (Cth ), and 1s excluded from operation, where the histonc ships and maritime archaeological sites are situated in the territorial sea of Australia within the meaning and extent of those words m the Seas and Submerged Lands Act 1973 (Cth.). Section 8 and s 9 of the Western Australian Act do not extend to historic shaps and maritime archaeological sites so situated because these are not effectively vested in the Museum on behalf of the Crown and the sections are therefore in their terms mapplicable So far I have assumed that no statute of the Impeual or the Common- wealth Parhament other than the Seas and Submerged Lands Act 1973 (Cth) is applicable. I shall now consider the statues which may be applicable The Merchant Shippuig Act, 1894 (Imp.) s 523 recognised and gave statutory form to the entitlement of the Ciown to all unclaimed wreck found in any part of the dominions of the Crown. The Crown here referred to 1s the Crown in right of the United Kmgdom, and the operation of this section in Australia 1s displaced by the Seas and Submerged Lands Act 1973 (Cth) The 1894 Act did not make particular provision for the manner of disposition of wreck found or taken possession of elsewhere than in the United Kingdom, or any place on or near the coasts of the United Kingdom (upon which see ss. 518-522, 524-528) Such other wreck, including derelict, would not be taken possession of by a receiver of wrecks and dealt with in accordance with the statute, but, in the absence of local legislation applicable within the limits of a colony (see, for example, the Heck Act, 1887-1889 (W.A.)), would be the subject of proceedings im Admiralty in accordance with the law and practices of that Court applicable in the United Kimgdom before the intro- duction of the special procedures provided in the Me? chant Shipping Act, 1894 and the statutes which preceded 1t on this subject. See 6 & 7 Will IV c. 60, 9 & 10 Vict c. 99,17 & 18 Vict c 104. But im Austraha in 1912 the Naviga- tion Act 1912 made provisons in respect of Australa analogous to ss 518-528 of the Imperial Act It went further m that st provided by s. 302 that not only where a person found or took possession of any wreck (which by defini- tion included deiclict) in Australia, but also where having found or taken possession of any such wreck outside Australia he subsequently brought it within the limuts of Australia he should give notice to the receiver and by - 46 - s. 303 not keep possession of any wreck (which must include wreck brought within the limits of Australia) but on demand deliver it to the receiver Follow- ing sections provide how the receaver should deal with it. See particularly ss. 305 and 309. It appears to me that the Navigation Act 1912 m ss. 302 et seq 18 dealing with wreck found o1 taken possession of aftcr its passing. It 1s not deal- ing only with that which became wreck after the passing of the Navigation Act 1912. That being so, any part of the Gilt Dragon or its cargo which has been found by any person and which has been brought into Australia since the com- ing nto operation of the Navigation Act 1912 (Cth.) ought to have been the subject of notice to the 1ecerver under s 302. No such person, not being the owner, should have kept possession of it It should have been delivered on demand to the receiver (s. 303) The owner then has one year to establish its clam and may have the wreck delivered up to him upon paying salvage and fees and expenses due (s. 305). If no owner establishes a claim to the wreck, the receiver should sell it, pay such salvage as the Minister directs or as is pre- seribed and pay the balance to the Consolidated Revenue Fund of the Com- monwealth. These provisions lay down procedures and give rights both to the true owner and to the Commonwealth as well as to any salvor with which s. 20B(2) of the Museum Act, 1959-1964 (W.A), s. 40(3) of the Museum Act, 1969- 1973 (W.A.) and s. 6(1) of the Maritune Archaeology Act, 1973 (W.A.) ate clearly mconsistent. It has been submitted that there 1s no power in the Com- monwealth to make laws with respect to derelict situated i the terntorial sea, at least where therc 1s no danger to shipping or navigation. Whether or not such a law is a law falling within s 51(i) of the Constitution it is a Jaw falling within s 51(xxix) for the reasons expressed by the majority of this Court in the Seas and Submerged Lands case (1975), 8 ALR 1. The question whether the Navigation Act 1912 particularly ss. 302, 303, 305 and 309, applies only to wreck which became so before the passing of that Act is mainly of importance m relation to derelict from the Gilt Dragon recovered between 1964, when the Museum Act, 1959 (W A.) was amended by adding s 20B(2), and the coming into operation of the Seas and Submerged Lands Act 1973 (Cth ). Thercafter 1t makes little but a procedural difference whether the rmghts of the Commonwealth are to be found in s. 309 of the Navigation Act 1912-1972 or in the prerogative nght of the Commonwealth Crown in respect of the terntoral sea. I would overrule the demurrer. MURPHY J The "Gilt Dragon" and other centuries-old shipwrecks lying off the Australian coast are part of the national heritage. The Netherlands Gov- ernment (the successor to the property and assets of the Dutch East India Company) recognised this and on 6 November 1972, transferred all its mght title and interest in "'Gilt Dragon" and other vessels to the Australian Govern- ment The remains of the "Gilt Diagon" are on or are part of the seabed under the territorial sea of the Western Australian coast. From 1901, the Commonwealth, not the States, has had nation-State rights (including inchoate rights) in the territorial sea, seabed and subsoil. The Seas and Submerged Lands Act 1973 (s. 6) validly asserted that the sovereign- ty over the territorial sca, seabed and subsoil 1s in the Crown in night of the Commonwealth (see N.S W. v The Commonwealth (1975) 8 ALR 1, the Cane andl Gubswasacd Tande On -\ ee ee eee eee - 47 - The ownership of the remains of the "Gilt Dragon" 1s incident to nation- al sovereignty (United States y Afame 420 US 515), the disposition of the remuins (including cargo) is for the Australian Government cxercising the executive power of the Commonwealth (see s. 6 of the Constitution and s. 6 of the Seas and Submeiged Lauds Act) Section 317 of the Navigation Act 1912 (Cth) provides for right to sal- vage in 1espect of wrecks on or near the coast (including articles 0: goods from a wrecked ship). The Navigation Act's provisions apply to ships wrecked before or after its commencement and 1t 1s valid The Commonwealth Parliament has plenary power under the external affairs power to legislate for shipping (wheth- er intra-state, interstate or overseas) m and beyond the termtomal sea and may make any provision it thinks fit for wrecks 1n or under the sea or on the coast. International acceptance is the practical Jumitation upon the exercise of the power. The Australian Parliament has now exercised such power in the Historie Shipwrecks Act 1976. In my opimon, s. 308 of the Navigation Act applies to wrecks in the territorial sea. The general intention of Part VI suggests that the phrase, "in Australia", used there 1s not restricted to wrecks whicli are landwards of low- water mark 1n internal waters. The Merchant Shipping Act 1894 1s inapplicable The United Kingdom Government has no rights in the wreck Many provisions of the Aferchant Shipping Act 1894 1f applicable would treat Australians and Australian Govem- ments as subordinate to the United Kingdom Government This Act was imperial legislation regulating merchant shipping of the United Kingdom and its possessions in a unified imperial-colonial system controlled from London. Australia 1s no longer part of that system. The Act 1s quite inconsistent with the present relationship between the United Kingdom and Australia Apart from that general basis of mapplicability, insofar as s. 523 of the Merchant Shipping Act purports to apply to the subject of wrecks dealt with by the Navigation Act, it 1s inconsistent with the Navigation Act (Part VII) and is therefore invalid in Australian law It 1s also invalid because of inconsistency with the Seas and Submerged Lands Act. The Maritune Archaeology Act 1973 (W A.) purports to vest property in hustoric ships and maritime archaeological sites under the territorial sea in the Western Australian Museum on behalf of the Crown in right of Western Aust- ralia (s 6). Persons are prohibited from assuming possession or control of an archaeological site, ship, relic or thing vested in the Museum by the Act (s. 84) In my opinion, 1t was not within the legislatrve competence of the Western Australian Parliament to deal with the ownership of the "Gilt Dragon" or to control its archaeological site. The Western Australian Parliament has no primary Iegislatrve competence over the area which is outside Western Aust- tralia (sce the Seas and Submerged Lands Case) Asscition of dominion and - 48- control over wrecks and archacological sites outside sts territory 1s not within the extra-ternitorial competence of a State. Section 20B(2) of the Museunt Act 1969-1973 (WA.) and s. 6(1) of the Afartune Archacology Act 1973 (W.A ) were not withm the competence of the Western Australian Parliament. If they were, they would be invalid for inconsistency with the Navigation Act 1912 (Cth), s. 6 of the Afaiitime Archaeology Act would also be mconsistent with the Seas and Submeiged Lands Act. The plaintiff has legal standing to maintain these proceedings. The defendant, claiming authority under the challenged State legislation, refuses to allow the plaintiff to work the wreck and, by its control of the wreck, effectively, prevents him from doimg so The State laws appear to debar huis salvage claim. In Baker v. Carr 369 U.S. 186, 204 (1962), the United States Supreme Court stated that "The gist of the question of standing" is whether the plaintiff has "alleged such a personal stake in the outcome of the con- troversy as to assure that concrete adverseness which sharpens the present- ation of issues upon which the court so largely depends for illumination of difficult constitutional questions." (See also Fast y Cohen 392 US 83, 99 (1960), Crouch v. The Comionweaith (1948) 77 CLR 339). The demurrer should be overruled. ———