Robinson v Western Australian Museum

[1977] HCA 46

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

ROBINSON v. WESTERN AUSTRALIAN MUSEUM

(1977) 138 CLR 283

31 August 1977

Constitutional Law (Cth)—Shipping and Navigation

Constitutional Law—State Parliaments—Legislative powers—State law concerning wrecks lying off coast—Whether for peace, order and good government of State—Whether repugnant to Imperial legislation—Whether inconsistent with Commonwealth legislation—Territorial seas—Museum Act, 1959-1964 (W.A.), ss. 3 "historic wreck", 20A, 20B, 20C—Museum Act, 1969 (W.A.), ss.6 "historic wreck", 39, 40, 42—Maritime Archaeology Act, 1973 (W.A.), ss. 3 "historic ship" 4, 6, 7—Merchant Shipping Act, 1894 (Imp.), ss. 518-528, 536 (2), 537—Colonial Laws Validity Act, 1865 (Imp.), s. 2—Navigation Act 1912 (Cth), ss. 294 "wreck", 302-309, 312, 317—Seas and Submerged Lands Act 1973 (Cth), ss. 6, 16 (b). Shipping and Navigation—Wrecks—Historic wrecks—Ownership—Possession—Salvage—Interest of the Crown—British possessions—Dominions—Merchant Shipping Act, 1894 (Imp.), ss. 511-537—Colonial Laws Validity Act, 1865 (Imp.), s. 2—Navigation Act 1912 (Cth), ss. 294 "wreck", 302-309, 312, 317—Maritime Archaeology Act, 1973 (W.A.), ss. 3 "historic ship", 4, 6, 7.

Decisions

1977, August 31.
The following written judgments were delivered: -
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 of 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 ocean some 2.87 miles from the nearest point of that coast. The plaintiff claims to have located the remains of the vessel and subsequently, after an interval of time, to 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legislation, namely the Museum Act, 1959-1964 (W.A.) ("the Museum Act, 1959"), the Museum Act, 1969 (W.A.) which Act repealed the Museum Act 1959, and the Maritime Archaeology Act, 1973 (W.A.) ("the Maritime Archaeology Act") are in fact void as being beyond the legislative competence of the State of Western Australia. He claims that, if 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 plaintiff's interest to bring such a suit and asserts the validity of the legislation. Two principal questions arise for decision: first, has the plaintiff a sufficient interest to maintain the suit and, secondly, are the State laws valid enactments of the legislature of Western Australia. (at p289)

2. By the Museum Act, 1959, the Western Australian Museum Board was constituted. Its function was to undertake the care and control of the Western Australian Museum established at Perth and of all coins, medals, objects of natural history, mineral specimens and exhibits and other personal property acquired for the purpose of the Museum. All the personal property in the possession or control of or held in trust by the Trustees of the Museum and Art Gallery of Western Australia for the purpose of being used for the provision of a museum was transferred to and vested in 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. (at p289)

3. By the Museum Act Amendment Act, 1964, the Board was authorized to take possession of historic wrecks which were defined as:

"(a) any ship referred to in the Schedule to (that) Act; and

(b) any other ship that was or appears likely to have been abandoned, wrecked or stranded before the year nineteen hundred and which is lying below low water mark in the territorial waters of the State."

The Board was also authorized with the approval of the Minister - (i) to reward the finder of a previously unknown historic wreck up to a sum of one thousand pounds; (ii) to reimburse the expenses of any person delivering to the Board an historic wreck; (iii) to take steps to take possession of, recover, preserve and display any historic wreck vested in the Board; (iv) to promote or supervise activities intended for the discovery, recovery, preservation and display of historic wrecks. See s. 17 (2) (e)-(i). 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)). (at p290)

4. 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 degrees 12' 15.9" S, longitude 115 degrees 21' 19.5" E. The amending Act also provided machinery 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 (appointed pursuant to s. 15 of the Museum Act, 1959) thought was of national or local historical interest or of scientific, archaeological, educational or other special or local interest (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) ). (at p290)

5. 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. (at p290)

6. The Museum Act 1969, constituted the Western Australian Museum consisting of Trustees of the Museum (see ss. 7 and 27). Part V of this Act made specific provision with respect to historic wrecks, which were in substance defined as in the Museum Act, 1959. Amongst the sections of this part, many of which repeat sections of the former Act, is s.39 (6) which makes it an offence for a person not being the finder of an historic wreck to remove it or part of it. The Gilt Dragon was now vested in the Museum (s. 40 (3) ). (at p290)

7. The functions of the Museum included the encouragement and provision of facilities for the wider education of the community 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. All articles in the possession or control of the Board under the Museum Act, 1959 were vested in the Museum (s. 29), the Trustees being given the management and control of the property and affairs (s. 20). (at p290)

8. In 1973 the Maritime Archaeology Act was passed by the legislature of Western Australia. Its relevant provisions are:

"4.(1)For the purposes of this Act - (a) any area in which the remains of a ship, which in the opinion of the Director may have been a historic ship, are known to be located;

(b) any area in which any relic is known to be located, or where in the opinion of the Director unrecovered relics associated with a ship which may have been a historic ship are likely to be located; and

(c) any structure, campsite, fortification or other location of historic interest that, in the opinion of the Director, is associated with and was occupied or used by, persons presumed to have been in a historic ship;

shall be a maritime archaeological site."

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). (at p291)

9. The property in and right to possession of all historic ships is vested in the Museum on behalf of the Crown, i.e. the Crown in right of Western Australia (s. 6 (1) ). Such property and right 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 Museum Act, 1969, and in the Museum thereafter until the commencement of the Maritime Archaelogy Act. An inhibition is imposed upon persons assuming possession or control of an archaeological site, ship, relic or thing vested in the Museum by that Act (s. 8 (1) ). (at p291)

10. Power is given to the Crown to declare an area an archaeological site and that a specified area surrounding that site is a protected zone which may include the waters above and the land or bed of the sea below that zone (s. 9). (at p291)

11. Regulations may be made imposing conditions or restrictions upon the introduction into or the use within a prohibited zone of diving, 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 mooring of vessels in any such zone (s. 9 (5) ). Contravention of any such regulations is made an offence (s. 9 (6) ). (at p291)

12. It is apparent from this recital of the relevant statutes that the legislature of Western Australia has purported to take possession and control of the Gilt Dragon and to have vested the property in its wreck in a Western Australian body, the Board or the Museum as the case may be. No right 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 remains of the vessel. (at p292)

13. The plaintiff claims to be the finder of the remains of the Gilt Dragon, to have notified his discovery - and rediscovery - to the Commonwealth Receiver of Wrecks under the Navigation Act 1912 (Cth), as amended ("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 coins 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. (at p292)

14. 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. (at p292)

15. I can dispose briefly of the question of the plaintiff's interest to maintain his 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 Acts. That proposition has been pressed upon us by the Solicitor-General for Western Australia. But I am clearly of the opinion that the plaintiff has a greater interest than any other member of the public to seek the assistance of the Court to determine the validity of the legislation. He located and relocated the remains of the ship and, in fact, he has done acts of possession in respect of it, i.e. of such possession of which such remains are capable. He has "worked" the ship for a considerable period of time. He claims to have done such acts as would entitle him either to salvage in the strict sense of the word or to fair compensation for his efforts if 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 is no need for me to decide which Crown or what other person or body is the person or body liable for salvage or compensation. There are various possibilities and their resolution cannot contribute to the resolution of this case. It is sufficient for present purposes that he has claimed to be entitled either to salvage or compensation. (at p292)

16. The Acts would prevent the plaintiff from seeking to assume possession or, if the right conclusion be that he has already been in possession, to continue possession, of the wreck. If valid, his claim to salvage or compensation would seem to be denied by the legislation. True it is that s. 20B (3) of the Museum Act, 1959 and its replacement in the Museum Act, 1969 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 plaintiff. But his ability to perfect his claim for salvage or compensation is clearly defeated by s. 20B (5) of the Museum Act, 1959 and its counterparts: and no power is given to the Board or the Museum to pay salvage or compensation nor is any right against the Board or the Museum created. (at p293)

17. The plaintiff is 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 somewhat colourful expression, suggested that the plaintiff had no greater interest than a weekend picnicker who happened to drop upon the wreck during his weekend leisure. But it 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 is so stark as to be eloquent of the plaintiff's peculiar interest 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 is the plaintiff by the provisions of the Acts to which I have referred. I conclude that the plaintiff has a sufficient interest to maintain his suit. (at p293)

18. There was some contest as to whether what the plaintiff located was relevantly a wreck. But, in 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 is on or in the seabed is a wreck and it is 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 rise to salvage. (at p293)

19. The remaining question is whether the legislature of Western Australia has legislative competence to enact the laws in question so far as they affect this wreck and the area in which it rests. The territory in respect of which that legislature is competent to make laws is the land mass which is bounded in the west and north-west by the low-water mark on the coastline. The bed of the sea beyond that point is not included in that territory. In particular, that seabed for the first three nautical miles from the shoreline is not so included. Thus it is, in my opinion, quite clear that the bed of the sea and things upon it and within it are not themselves subject to the legislative power of the State, with the exception of those erections which the Australian Parliament has excepted from its own control (see s. 15 of the Seas and Submerged Lands Act 1973 (Cth)). Having regard to the terms of s. 51 (x.) of the Australian Constitution, the State may make laws controlling fishing in the seas comprised in the first three nautical miles offshore of its territory, at least in so far as such laws fulfil the requirement of being laws for the government of that territory. But the waters within those limits neither form part of the territory of the State nor are themselves the subject of legislative power of the State. (at p294)

20. However, a law which satisfies the test of being a law for the government 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 is 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 Parliament 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 territorial 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 territory, an extra-territorial operation where such operation serves the peace, order and good government of that territory is in high contrast to the extra-territorial legislative power of the Australian Parliament. In the case of the Commonwealth, so long as the law satisfies one of the heads of legislative power granted by the Constitution to the Commonwealth, it is no objection that the law takes as its subject matter something which is beyond the territorial limits of the Commonwealth. In the case of the Commonwealth, bearing in mind its 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 territorial 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-territorially so long as the extra-territorial operation is still something which can be said to be for the peace, order and good government of the State. (at p295)

21. In the present instance, the Maritime Archaeology Act, and Pt V of the Museum Act 1969 take as their subject matter the wrecks and the areas around the wrecks on the ocean floor beyond low-water mark on the coastline of Western Australia. The laws segregate these areas and these wrecks and prevent all persons from having access to them. (at p295)

22. Some endeavour was sought to be made to 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, order and good government of Western Australia. I find this endeavour completely unconvincing. After 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 is a Western Australian institution and no doubt its establishment and maintenance is 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 imagination could it be said that the declaration of marine archaeological 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 degree of artistry these ancient wrecks were described as "historic". So they might properly be styled in the history of navigation but scarcely 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 of its educational functions. So, indeed, 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 fleet. (at p296)

23. I might mention in passing that the Maritime Archeology Act does not confine the power to declare archaeological sites to areas in proximity to the shoreline of Western Australia. The areas are selected by reference to the presence of an historic ship which may have been lost wrecked or abandoned "on or off the coast of Western Australia". On the other hand, the Museum Act, 1959 and the Museum Act, 1969 limit 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 little reason to confine the extent of the power given by the Maritime Archaeology Act to declare archaeological sites to their declaration in the "territorial waters of the State". The expression "on or off" the coast of Australia appears in the Historic Shipwrecks Act 1976 (Cth) ("the Historic Shipwrecks Act") where, it seems to me, it cannot be confined to an area within three nautical miles of the coast. (at p296)

24. Again, the inhibition of each of the Acts is not limited to the citizens or residents of Western Australia. The prohibitions are universal. (at p296)

25. These considerations emphasize the fact that the wrecks and the seabed on or in which they lie are in themselves, and apart from any connexion with the territory of Western Australia or of any activity there carried on, made the subjects of the legislation. (at p296)

26. I should add that the limitation by the Museum Act, 1959 and the Museum Act, 1969 of wrecks "lying below low water mark in the territorial waters of the State" does nothing to connect the law as to the wrecks with the territory of Western Australia or with its 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 bearing, in my opinion, on the validity of the laws here under attack, or upon the resolution of this case. (at p296)

27. In my opinion, the Western Australian statutes may not validly forbid the plaintiff to enter the area around the wreck of the Gilt Dragon or to explore it or to proceed with what may amount to salvage operations with respect to it or to remove from it articles which the vessel contained when it was wrecked long ago. (at p296)

28. 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 repugnancy of the Western Australian laws with the British Merchant Shipping Act, 1894 do not arise so far as I am concerned because of my view that the Western Australian statutes in the stated respects are beyond the legislative competence of the Western Australian legislature. Equally, questions as to whether there is inconsistency within s. 109 of the Australian Constitution between the legislation of Western Australia and the Navigation Act for the same reason do not arise. Further, there is no need in order to resolve this case to decide in whom the title to the wreck really resides. That question may turn, in my opinion, upon the true construction of Pt VII of the Navigation Act, or other legislation of the Australian Parliament. But its solution is not necessary, in my opinion, for the disposal of this demurrer. (at p297)

29. 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 construction of Pt VIII of the Navigation Act, it has not already done so - a matter on which I express no opinion - it can certainly do so. The Historic Shipwrecks Act, passed after the commencement of these proceedings, is an exercise of such a power. (at p297)

30. In my opinion, the demurrer should be overruled. (at p297)

GIBBS J. The Vergulde Draeck - the Gilt Dragon - was one of those Dutch ships which, during the 17th century, sailed too far to the east 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 directions 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 guilders. For 300 years 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 - it 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 certainty, 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 is submerged by the sea and located in the seabed. It appears from what was said in argument that time and the seas have left of the ship only scattered remnants which are encrusted with corals and other marine growths, and if not entirely covered by the seabed can hardly be distinguished from it. The position of the wreck has now been fixed; it is in the open sea, fifty miles or so north of Perth, and less than three nautical miles from the shore. (at p298)

2. In April 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 either submitted or disclosed to the Commonwealth Receiver of Wrecks and to the Western Australian Museum Board ("the Board"), a body established by the Museum Act, 1959 (W.A.). But after the Museum Act Amendment Act, 1964 (W.A.) came into operation on the 18th December 1964 the plaintiff was no longer able to work on the wreck or to recover materials from 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 plaintiff for the expenses, or any part of them, that he has incurred in salvaging materials from the wreck or to compensate him in any way as finder of it. (at p298)

3. In these circumstances the plaintiff brings the present proceedings claiming a declaration that certain provisions of the Museum Act, 1959-1964, the Museum Act, 1969 and the Maritime Archaeology Act, 1973 are invalid, and claiming also an injunction and further declaratory relief. The defendant has demurred. The plaintiff's claim is too widely drawn; it appears to seek a declaration of the invalidity of some provisions of those Acts which on no possible view could adversely affect the plaintiff, in so far as the working of the Gilt Dragon, or his ownership and control of the materials recovered therefrom, are concerned. (at p298)

4. The Museum Act, 1959-1964 drew a distinction between two kinds of "historic wrecks" - that term was defined in s. 3 to include (a) any ship referred to in the Schedule to that Act; and (b) any other ship that was or appears likely to have been abandoned, wrecked or stranded before the year 1900 and which is lying below low-water mark in the territorial 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 included the Gilt Dragon. Of the other ships therein referred to it is 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 scientific, 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 purposes 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 pursuant 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 pursuant 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 Board 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 within a limited time, and was obliged to issue the necessary authority in writing permitting the property to be sold, destroyed or otherwise disposed of (see s. 20C (3), (4) ). In short, although the remnants of the 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, although the effect of the Act was that the plaintiff was liable to suffer a temporary interference with any right that he had to possession of, and to dispose of, those articles. (at p300)

5. By the Museum Act, 1969 the Museum 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 Dragon 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 operation of, the Act (s. 40 (4) ). Provisions similar 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. (at p300)

6. The relevant provisions of the Museum Act, 1969 were repealed by the Museum Act Amendment Act, 1973, and were replaced by provisions of the Maritime Archaeology Act, 1973. These Acts were proclaimed on 7th December 1973. By s. 3 of the latter Act "historic 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 historic ship, or to have been constructed or used by any person associated with any such ship, and any thing to which the provisions of" and sub-s. 3 of s. 6 "apply". The last-mentioned provisions do not concern us. By s. 6 (1) the property in and right to possession of all historic ships and maritime archaeological sites is vested in the defendant on behalf of the Crown. By s. 6 (2) the property in and right to possession of all relics derived from or associated with an historic ship is vested in the defendant on behalf of the Crown. There is however an exception in the case of (inter alia) an object 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, or s. 42 of the Museum Act, 1969, and in respect of the disposal of which the necessary written permission 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 is not payable to any person by reason that the property in and the right to possession of any site, relic, or thing is vested in the Museum on behalf of the Crown by the operation of this Act". By s. 7 (2) it is declared that the property in and the right to possession of any ship or relic by the operation of the Act vested in the defendant on behalf of the Crown is to be taken to have been so vested for all purposes at all material times in the Board, during the operation of the Museum Act, 1959-1964, and in the defendant, during the operation of the Museum Act, 1969. It is 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 Act: (s. 8 (1) (a)). Section 9 gives power to declare maritime archaeological sites and protected zones which may include the seabed. Section 22 in substance continues the effect of notices given under s. 20C of the Museum Act, 1959-1964 or s. 42 of the Museum Act, 1969. (at p301)

7. On behalf of the plaintiff it is 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-territorial operation, and lack a sufficient connexion with the State. Alternatively, it is submitted that those provisions are repugnant to the Merchant Shipping Act, 1894 (Imp.) 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 p301)

8. At the outset there arises the question whether the plaintiff has standing to challenge the validity of the legislation. The defendant contends that the plaintiff is 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, if valid, deny his right, as finder or salvor, to the possession of the wreck, and destroy his claim to reimbursement of salvage expenses. In my opinion the plaintiff had a special interest of another kind in challenging 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 in which he had been engaged and thereby caused him possible pecuniary detriment; they interfered with what was for him his trade or business. This is enough to entitle him to challenge the validity of the legislation in so far as it prevents him from continuing his former activities: Attorney-General (N.S.W.) v. 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 Commonwealth (1949) 79 CLR 201, at pp 257-258 . However he cannot, in my opinion, attack the legislation generally, but only so much as affected his interest: Real Estate Institute of N.S.W. v. Blair (1946) 73 CLR 213, at p 227 ; British Medical Association v. The Commonwealth (1949) 79 CLR, 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 rights of the plaintiff in such a way as to give him the standing which he claimed. In the first place, it was said, he did not in fact have possession of the wreck and had not in law 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 reimbursement which he may have acquired as finder or salvor. (at p302)

9. 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 controverted questions of law or fact. It may be clear enough that if the plaintiff has the right or interest which he claims, and if the legislation has the effect which he ascribes to it, the legislation, if valid, will so affect the plaintiff as to give him standing to sue, but it may be disputed that he has such a right or interest, or that the legislation has such an effect. In such a case it 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 standing to sue, or whether it will be satisfied to accord standing to the plaintiff on the ground that he asserts, not implausibly, that his interests are threatened by the operation of the legislation in question. The court has a discretion: it is not bound to take one course rather than the other. If the plaintiff's claim to have a locus standi is 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 requires the consideration of weighty and complex questions which may never fall for decision if the issue of validity is decided against the plaintiff, it may be more convenient to proceed immediately to determine the validity of the challenged statute. The court, in balancing the conflicting considerations, will remember that it cannot decide a question of validity as an abstract or hypothetical question. In the present case it is 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 standi. The facts that the Commonwealth and a number of States have intervened to argue questions of power from different points 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. (at p303)

10. The first question that then falls to be decided is whether the three statutes now under consideration were within the competence of the legislature of Western Australia. The attack upon their validity takes as its foundation the fact that they purport to operate in relation to things existing and occurring in the seas off the coast of Western 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 is 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 v. Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337 . The statutes therefore are 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 is contended that the statutes lack a sufficient connexion with the State of Western Australia and are for that reason invalid. (at p303)

11. In Pearce v. Florenca (1976) 135 CLR 507 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 I there referred. The doctrine limiting the power of State legislatures to enact legislation having extra-territorial 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 is 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 law 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 - it is then a pointlessly 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, prevail, there is no reason to limit the power of the subordinate legislature, since any conflict between the two laws will, by its very existence, be resolved in favour of the law enacted by the paramount legislature. To restrict the power of the States to enact legislation taking effect within the off-shore waters is a needless impediment to the exercise of their legislative authority, and does nothing to enhance the powers of the Commonwealth. As I pointed out in Pearce v. Florenca, it was accepted for over a century that the jurisdiction of colonial legislatures extended over the off-shore waters, and it would be unfortunate and anomalous if the powers of the State legislatures were now more limited. However I adhere to the conclusion which I expressed in Pearce v. Florenca (1976) 135 CLR, at p 520 , as follows:

"The history of the exercise of State powers in the past, the present public interest, and the reason on which the principle requiring a territorial nexus seems to rest, all combine to lead to the conclusion that the fact that the persons, things or events to which the legislation of a State applies occur within the off-shore waters provides sufficient connection with the State to render the legislation 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 Australia. But if further support for their validity were needed it may 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 is a legitimate concern of the people of Western Australia. Moreover the need to regulate the rights of claimants to wrecks and other articles found in the off-shore waters, and to prevent disputes and maintain order amongst persons seeking to exploit them, would provide the necessary connexion with the territory of Western Australia if the mere propinquity of the off-shore seas did not already provide it. (at p305)

12. 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 mile limit. That is not necessarily any objection to their validity, as Croft v. Dunphy (1933) AC 156 showed. However we are concerned only with the wreck of the Gilt Dragon and need not consider whether the application of the statues 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. (at p305)

13. It is convenient now to turn to the argument that the statues in question 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 Museum Act, 1959-1964 had a valid operation until its repeal in 1969 and the provisions as to historic wrecks contained in the Museum Act, 1969 had a valid operation until 4th December 1973, a few days before the repeal of the latter Act. For reasons which will appear, it is unnecessary to consider what effect upon the rights of the plaintiff these statues would have had if they had operated validly for a time and then had become pro tanto invalid. (at p305)

14. There is in my opinion no inconsistency between the provisions of the Seas and Submerged Lands Act and those of the Maritime Archaeology Act. In the first place the Seas and Submerged Lands Act is not a law for the acquistion of property which had previously belonged to any State or person. (at p305)

15. If it were such a law it would be invalid for want of provision of just terms: s. 51 (xxxi.) of the Constitution. It is a law by which the Commonwealth declared its sovereignty in the territorial sea (see s. 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 rights 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 asserted. By the express terms of s. 16 it is provided that the preceding provisions of Pt II of the Act -

"(b) do not limit or exclude 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 law is 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 Submerged 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 (1976) 135 CLR, at pp 512, 520, 525 . The Parliament 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 opinion come within the exception contained in s. 16 (b). In one sense any exercise by a State of legislative power over the territorial sea might be regarded as an exercise of sovereignty but obviously that is not what is meant by the exception. The reference to "sovereign rights" is explained by the fact that the Commonwealth asserts such rights, rather than sovereignty 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 is expressed to vest any sovereignty in or to make any sovereignty exercisable by any person other than the Crown in right of the Commonwealth. In other words s. 16 (b) is only concerned to invalidate State laws which expressly assert sovereignty contrary to the Commonwealth's assertion. A law vesting property in someone on behalf of a State is not a law which vests sovereignty in that person or makes it exercisable by him. For example, a law by which a State confiscated the property of persons illegally fishing in the territorial sea would not be within the exception contained in 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 (1976) 135 CLR 507 . In argument it was said that a State law purporting to appropriate part of the seabed would be inconsistent with the Seas and Submerged Lands Act, and that the provisions of the Maritime Archaeology Act relating to maritime archaeological sites, or to a wreck embedded in the seabed, were accordingly invalid. There is 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 is expressed to vest or make exercisable any sovereignty (or, if those words apply otherwise than in relation to the continental shelf, any sovereign rights). It is therefore unnecessary to consider whether the provisions as to maritime archaeological sites would, if invalid, be severable, or whether the wreck has lost its 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 in the seabed, but it would be relevant to inquire to what extent it remained distinguishable from the seabed, and to what extent it had retained 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 inquiries. (at p307)

16. 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. (at p307)

17. The next question for decision is whether the Western Australian statutes were or are repugnant to any of the provisions of the Merchant Shipping Act, 1894 (Imp.) which extend to Western Australia and were or are for that reason rendered void and inoperative by s. 2 of the Colonial Laws Validity Act, 1865 (Imp.). The submission on behalf of the plaintiff is 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" is defined 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 meant something abandoned and deserted at sea 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 ed. (1958), pp. 385-390 and "Abandoned Property at Sea: Who Owns the Salvage 'Finds'?" in William and Mary Law Review, vol. 12 (1970), pp. 97 et seq. It was not contested that the Gilt Dragon was derelict within this definition and therefore brought within the expression "wreck" by s. 510. (at p308)

18. The question however arises whether the relevant provisions of Pt IX have any application 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 it were expressly declared 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 511-519, 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. 520-522, 524, 526-527, 537) deal with the powers, duties and functions of receivers of wrecks, and since a receiver is a person appointed in a district within the United Kingdom (see s. 566) those provisions also are inapplicable outside the United Kingdom. Indeed most of the provisions of Pt IX show by their own terms that they are inapplicable to the waters of British possessions outside the United Kingdom. Two of the sections relied upon by the plaintiff, ss. 526 and 537, do not extend to Western Australia. A third provision on which the plaintiff relies is s. 536 (2). Sub-section (1) of that section expressly refers to a receiver. Sub-section 2 makes it an offence, inter alia, 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 circumstances that of the three sections which create offences in respect of wreck (ss. 535, 536 and 537), two (ss. 535 and 537) contain provisions 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 inapplicable: it is limited to wrecks in (or possibly near) the United Kingdom. (at p308)

19. The remaining section upon which the plaintiff relies as creating a repugnancy is 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 Majesty or any of Her Royal predecessors has granted to any other person the right to that wreck."

This section presents some difficulties 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 Majesty is 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 vester 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 legislative and administrative power is exercised through different agencies in different places: the Engineers Case (1920) 28 CLR 129, at p 152 ; Minister for Works (W.A.) v. Gulson (1944) 69 CLR 338, at pp 346-347 . Although this principle is of little pratical assistance in many cases, as Latham C.J. observed in Minister for Works (W.A.) v. Gulson (1944) 69 CLR, at pp 350-351 , it does help to illuminate the provisions of s. 523. That section was not in my opinion intended to claim for Her Majesty, in right of the United Kingdom, wrecks found in any part of Her Majesty's dominions. It 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, rather than in those in the colonies. The effect of s. 523, so far as Western Australia is concerned, is that wrecks within Her Majesty's dominions in Western Australia are vested in the Crown in right of Western Australia. This view is strengthened by the fact 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 is in my opinion no repugnancy between the provisions of the legislation in question and those of the Merchant Shipping Act. (at p309)

20. The final question for decision is whether the Western Australian statutes were inconsistent with the provisions of Pt VII of the Navigation Act 1912 (Cth) as amended, which deal with "Wrecks and Salvage". By s. 294 of that Act "wreck" is defined to include inter alia "derelict found in or on the shores of the sea ... and any articles or goods of whatever king 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 section "receiver" is defined to mean "a receiver 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 is provided that no person other than the owner shall keep possession of any wreck or fail on demand to deliver it to the receiver. Where a receiver takes possession of a wreck he must give the appropriate notice (s. 304) and the owner, upon establishing his claim within the specified time, and upon paying the salvage fees and expenses due, is entitled to have the wreck or the proceeds thereof delivered up to him: s. 305. The receiver is given power to sell the wreck in certain 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. It is necessary to mention only s. 312, which provides:

"Every person who takes into any place out of Australia any ship stranded, derelict, or otherwise in distress, or any wreck found on or near the coasts of Australia, and there sells it, shall be guilty of an indictable offence."

Section 317 provides as follows:

"Where any ship is wrecked stranded or in distress at any place on or near the coasts of Australia or any tidal water within Australia, and services are rendered by any person in assisting that ship or saving any wreck, there shall be payable to the salvor, by the owner of the ship or wreck, a reasonable amount of salvage, to be determined in case of dispute in manner hereinafter mentioned." (at p310)

21. The provisions of s. 308 of the Navigation Act are not in my opinion in conflict with those of the Western Australian statutes whose effect has been to vest the property and the right 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 limit is "wreck found in Australia" within the meaning of the section. However the section applies only to "unclaimed wreck". If the wreck is claimed, at least if the claim is not dismissed 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 is most likely to be based on the rules of the common law but there is 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 claimant might successfully base his claim on such a law. Similarly 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 it, 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 unclaimed 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 contrary s. 308 operates, and is intended to operate, against a background of which those State laws formed part. (at p311)

22. Further in my opinion there is no inconsistency between the other provisions 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 is no direct or express inconsistency between them; both sets of laws are susceptible of simultaneous obedience. That of course is not enough. If the Commonwealth Parliament had in enacting the Navigation Act the intention "to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing he particular conduct or matter to which its attention is 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 CLR 472, at p 482 . In my opinion it is clear that Pt VII of the Navigation Act is not intended as a complete statement of the law regarding wrecks. Indeed this very question was considered in 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 it was held in Victoria v. The Commonwealth (1937) 58 CLR 618 that there was no inconsistency between that section and a Victorian statute which provided for the removal of ships sunk within a Victorian port, at least in the absence of an actual exercise by the Commonwealth authority 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 legislation. The State legislation would in no way alter, impair or detract from the operation of the Commonwealth law: cf. Victoria v. The Commonwealth (1937) 58 CLR, 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 regulated by the Commonwealth law. (at p312)

23. Finally special mention should be made of s. 317. I shall assume, for I do not find it necessary to decide for the purposes of this demurrer, that the section applies to ships wrecked before the Navigation Act came into force, and that a person who finds the site of an ancient wreck and recovers relics of the wreck from the seabed renders services "in assisting that ship or saving any wreck" within the meaning of the section. On those assumptions the section would entitle such a person to payment by the owner of a reasonable amount for salvage. It was submitted that this is 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 is not payable to any person by reason that a historical wreck is vested in the Board, or the defendant, by the operation of those Acts. Section 7 (1) of the Maritime Archaeology Act is in 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 Commonwealth legislation is not concerned with the question of compensation for any expropriation of property but simply with the question of salvage for services rendered. Neither provision affects the operation of the other. If a 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 inconsistency between the State and Commonwealth provisions. (at p312)

24. Since the argument that the State legislation is inconsistent with the provisions of the Navigation Act should in my opinion fail, I need not consider whether the provisions of Pt VII of the Navigation Act were validly enacted. (at p313)

25. In my opinion the challenge to the validity of the three statutes of Western Australia should fail completely. (at p313)

26. I would allow the demurrer. (at p313)

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 Batavia. (at p313)

2. The plaintiff claims 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, claiming what he conceived to be his interest in the wreck, as the finder of it. Then for some years he was unable to find it 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. (at p313)

3. His activities were brought to a halt in December 1964. Legislation of the State of Western Australia, which came into force in 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 continued by its successor, the Western Australian Museum. (at p313)

4. The plaintiff, by proceedings instituted in 1974, attacks the validity of this and subsequent 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 is ultra vires the State's legislative power, that it is repugnant to the Merchant Shipping Act, 1894 (Imp.), and that it is inconsistent 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 its successor, some unrelated to the relief which is sought, together with a series of contentions of law which are to be urged. From all this there emerges, I think, the following complaints made against the Board and its successor: that unlawfully they assumed control of the Gilt Dragon 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 receiver of wrecks; that they have refused either to reimburse to him his expenses incurred in salvaging materials or to compensate him as finder, thereby occasioning him damage; finally that they have, since 1964, excluded him 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 unlawful and adds prayers for injunctive relief. (at p314)

5. 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 sue. By leave the Commonwealth intervened and supported, in certain respects, aspects of the plaintiff's case while, on the other hand, the States of New South Wales, Victoria, South Australia and Tasmania intervened to present arguments supporting the validity of the Western Australian legislation. (at p314)

6. The State legislation which the plaintiff impugns, although recent in origin, has, since first introduced in 1964, undergone much subsequent amendment, no doubt in response to quickening interest in the wealth of historical relics requiring preservation and care which exist in Western Australia's off-shore waters. (at p314)

7. It will be necessary to examine aspects of this legislation in some detail but for the present its broad outline will suffice. The Museum Act, 1959, originally silent as to maritime wrecks, was amended in 1964 to empower the Museum Board to take possession of historic wrecks and recover, preserve and display them. Six specific historic wrecks, including the Gilt Dragon, were vested in the Board, some lying many miles off the coast, far beyond league seas. The Board might also have vested in it other wrecks "lying below low water mark in the territorial waters of the State". Discoverers of any newly found wreck might be rewarded and persons delivering any historic wreck 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 right to inspect property recovered before December 1964 from any of the six named wrecks and which was then in private hands. (at p314)

8. By the Museum Act, 1969 the previous legislation was repealed and substantially re-enacted; the present defendant was constituted as a body corporate and in it was vested all land, moneys and moveables vested in the old Board and all rights relating to the Museum enjoyed by the old Board. The specific vesting provisions of the former legislation concerning historic wrecks were repeated. (at p315)

9. Then in 1973 those provisions of the 1969 Act dealing specifically with historic wrecks were repealed by the Museum 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 Maritime Archaeology Act was passed. It is of a more sweeping character than its predecessors; not only are certain wrecks named but a new term, "historic ship", is used; it is 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 historic 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 historic ship are located and the property in and right to possession of them and in and of all historic ships, are vested in the Museum on behalf of the Crown. Extensive protected zones surrounding maritime archaeological sites may be created. The Act also contains penal and enforcement provisions, including a conditional prohibition against the disposal of articles vested in the Museum and an avoidance of contracts for their disposal. (at p315)

10. Mr. Robinson's action is concerned exclusively with what he asserts to be the effect upon him of this body of legislation and of action taken under it and, in common with other litigants, he must, if he is to succeed, show that he has suffered detriment, or reasonably apprehends future detriment, against which the law will protect him; he must make out an available cause of action. He complains of the impact upon him of State legislation, which he accordingly seeks to impugn as invalid, and must as a start show himself to have been detrimentally affected by it. Most aspects of Mr. Robinson's complaints will, I believe, on examination be found to be misconceived and to involve no detriment whatever to him. In one respect only, that is, by his exclusion from the wreck and its site, has he, in my view, felt the impact of the legislation and in that instance it has affected him no differently from any other member of the public. Accordingly, whatever might be said about the validity of this legislation and the important constitutional considerations which this involves it should not, I think, be said in these proceedings, in which I regard the plaintiff as not entitled to any relief. (at p315)

11. To appreciate why this is so requires an understanding of the status in law of the Gilt Dragon and its contents when the plaintiff first found it, of his position as its discoverer and of the consequences in law of his subsequent actions; something also must be said about title to the Gilt Dragon. Only then will a closer examination of the Western Australian legislation become appropriate. (at p316)

12. The Gilt Dragon, when discovered, was a derelict in the sense in which that expression is used in salvage law, that is to say, it was property which had been abandoned and deserted at sea by those who were in charge of it, any hope or intention of returning to it having long since been abandoned - Kennedy on Civil Salvage, 4th ed. (1958), p. 387. The description "derelict" is commonly applied to vessels afloat in the sea, in contrast to "wreck" which, in its original sense and unaffected by statutory definition, describes that which is washed ashore - wreccum maris - R. v. Forty-nine Casks of Brandy (1836) 3 Hag Adm 257, at p 278 (166 ER 401, at p 409) , per Sir John Nicholl. However derelict extends beyond abandoned vessels which are afloat and includes sunken vessels and their contents, at all events if not within the description of ligan (or perhaps lagan - Sir Henry Constable's Case (1601) 5 Co Rep 106a (77 ER 218) ; but here there is no question of ligan and the scope of that "uncouth appellation", as Sir John Nicholl called it (1836) 3 Hag Adm, at p 277 (166 ER, at p 409) may be left unexplored. Derelict has thus been applied to describe treasure from the foundered H.M.S. Thetis (1835) 3 Hag Adm 228, at p 235 (166 ER 390, at p 393) ; the specie recovered from the vessel Schiller, wrecked off the Scilly Islands, was derelict until its true owners by their conduct of salvage operations resumed possession of it - The Cargo ex Schiller per Brett L.J. (1877) 2 PD 145, at p 148 , and see generally The Tubantia (1924) P 78, at p 87 . (at p316)

13. 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 curious form of salvage service; they are far removed from those "spontaneous services, rendered in the protection of the lives and property of others" of which Sir Christopher Robinson spoke in The Calypso (1828) 2 Hag Adm 209, at p 217 (166 ER 221, at p 224) . His role has been less that of a conventional salvor and more that of the seeker after treasure trove and that is perhaps reflected in the 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 High Court in Simon v. Taylor (1975) 2 Lloyd's Rep 338 to deny to four divers who raised a cargo of mercury from a sunken German U-boat the status of salvors; Chua J. there said of them (1975) 2 Lloyd's Rep, at p 345 :

"The evidence is clear that what the four divers did was motivated not by any intention to salve for the benefit of the owners of the submarine 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 that there was no exposure of the mercury to imminent or pending danger, if not retrived it "would not have been entirely lost" (1975) 2 Lloyd's Rep, at p 344 . (at p317)

14. English authority is, however, to the contrary. In The Tubantia (1924) P 78 Sir Henry Duke accorded the status of salvors to persons equally devoid of concern for the interests 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 plaintiffs 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 Morris v. Lyonesse Salvage Co. Ltd. (1970) 2 Lloyd's Rep 59 Dunn J., in upholding the rights of one set of salvors as against other intending salvors of sunken men-of-war, again off the Scilly Isles, applied what had been said in The Tubantia and treated the 260 year-old wrecks as derelict and those engaged in their recovery as salvors. In that case it is 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 (1975) 2 Lloyd's Rep 338 , "motivated not by any intention to salve for the benefit of the owners ... but solely for their own benefit". Nevertheless the plaintiffs' status as salvors was not doubted. Moreover what was said by Chua J. concerning the absence of imminent or pending danger does, I think, require further examination in the light of authorities to which I had occasion to refer in Fisher v. The Oceanic Grandeur (1972) 127 CLR 312, at pp 323-327 . I cannot regard the present plaintiff's activities as denied the character of salvage services on the score of the absence of any such danger to the Gilt Dragon or her contents. (at p317)

15. The present plaintiff's activities in recovering "many valuable artifacts and coins from the wreck site" of the Gilt Dragon were, then, salvage services and he was a salvor. Of what it was that he was a salvor requires further consideration, but before passing to this and to the question of the rights to which, as salvor, he is entitled I turn for the moment to the question of the title to the Gilt Dragon. (at p318)

16. Title to the Gilt Dragon, at the time of her discovery by the plaintiff, must, I think, for present purposes 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 (Arrow Shipping Co. Ltd. v. Tyne Improvement Commissioners (1894) AC 508 , per Lord Macnaghten (1894) AC, at p 532 , Lord Herschell L.C. (1894) AC, at p 519 , Lord Watson (1894) AC, at p 521 and Lord Morris (1894) AC, at p 534 perhaps only because this is an exceptional kind of personality, sunken wreck (Holdsworth's History of English Law, vol. 7, p. 496, esp. fnn. 1 and 2 and authorities were cited - and see criticism of the Arrow Shipping Case in the Law Quarterly Review, vol. 10 (1894), p. 293). There is, of course, no evidence here of express abandonment nor of the circumstances of the wreck, other than that it occurred in the uncharted waters of an undiscovered continent; there was, no doubt, nothing voluntary in the owners' failure either to resume possession or even to discover 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 in other circumstances the mere passing of time without any attempt to assert possession can perhaps be so regarded (see Annotation 63 A.L.R. 2d 1372). I accordingly treat the original owners' title to the vessel as subsisting at the time of its discovery by the plaintiff. I would only add that while, 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 it (Bradley v. H. Newsom Sons &Co., per Lord Finlay L.C. (1919) AC 16, at p 27 . (at p318)

17. That the finder of derelict does not thereby acquire any title to it, 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 Admiralty. It is the Crown, not the finder, in whom, in such circumstances, title comes to vest as droit of Admiralty. In The Aquila (1798) 1 C Rob 37 (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, is acquired beneficially for the Sovereign, if no owner shall appear" (1798) 1 C Rob, at p 42 (165 ER, at p 89) . In R. v. Property Derelict (1825) 1 Hag Adm 383 (166 ER 136) , the contents of a derelict found on the high seas had been appropriated by the finders and distributed among them but was ordered to be condemned as droit of Admiralty for want of claim by the owner, the finders instead receiving a moiety as salvage remuneration; and see R. v. Two Casks of Tallow (1837) 3 Hag Adm 294 (166 ER 414) . Courts in the United States, regarding this rule as a post-1776 development of English law and hence inapplicable in their jurisdictions, have in such circumstance 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.L.R. 2d. 1369, at p. 1374); however modern instances of the adoption of the contrary, English, view also occur (State of Florida v. Massachusetts Co. (1957) Fla 95 So 2d 902 ; State of North Carolina v. Flying "W" Enterprises, Inc. (1968) 160 SE 2d 482 ). (at p319)

19. To the objection that s. 301 is inconsistent with this interpretation I would make this answer. The section provides for the receiver or, in his absence, the collector or a justice, to conduct an examination of witnesses on oath in relation to certain matters "Where any ship is or has been wrecked, stranded, or in distress". The use of the perfect as well as the present tense does not indicate that the present tense is intended to signify only those ships which became wrecked, stranded or distressed after the commencement of the Act. The employment of the perfect tense in this section - a usage not repeated elsewhere in the provisions now under consideration - appears to me to be designed to authorize an examination of witnesses in relation to a maritime casualty or emergency which occurred before the commencement of the Act, where the condition of the ship no longer continues to answer the statutory description. No doubt it was considered necessary or desirable to provide for the examination of witnesses to a past maritime casualty or emergency, though it did not result in a ship being wrecked, stranded or in distress after the commencement of the Act, e.g. a ship in distress which was saved before that date. The scope of the examination extends to "The occasion of the wrecking, stranding, or distress of the ship" (s. 301 (1) (e)). Its importance is illustrated by the circumstance that a copy of the evidence is to be sent to the Minister (s. 301 (2) ). (at p334)

20. However, many provisions in Pt VII are expressed to have a limited geographical operation, reflecting in their application to Australia in lieu of the United Kingdom the limitations already discerned in the provisions of the Merchant Shipping Act. Some are confined expressly or impliedly 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 Australia or within the limits of Australia (s. 301 (to which I have referred), s. 302 (which obliges a person to give notice to the receiver, stating that he has found or taken possession of a wreck "within the limits of Australia" or has brought a wreck within those limits), s. 308 (to which I have already referred) and s. 309 (which empowers the receiver to sell unclaimed wreck)). (at p335)

21. Although ss. 296-300 appear to extend to wrecks outside the boundaries of Australia, that is, to wrecks "at any place ... near the coasts of Australia", 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 therefore do not regard them as having any application to the Gilt Dragon which by no stretch of the imagination could be classified 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 Submerged 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 Gilt Dragon. The application of s. 317 is of importance because it confers against the owner a statutory right to salvage on a person saving any wreck, and by definition "wreck" includes articles or goods which come from a wrecked ship (s. 294). (at p335)

22. 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, it is 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 (The Constitution, s. 51 (XXiX.)) - see the Seas and Submerged Lands Case (1975) 135 CLR, at p 470 . It is possible that the provisions may also be supported by ss. 51 (i.) and 98 of the Constitution, but, as the Court found in Victoria v. The Commonwealth (1937) 58 CLR 618 , it is not desirable to venture an answer to this difficult question when the problem of inconsistency is otherwise capable of resolution. (at p335)

23. It may well be that there is an inconsistency between some of the provisions 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 is 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 territorial waters. (at p335)

24. The crux of the problem of inconsistency as it arises in this case is 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 Gilt Dragon. However, they do not deal with the ownership or title to wreck. That is a topic with which other provisions in Pt VII deal, notably s. 308, but these provisions, including s. 308, do not extend to wreck below low-water mark. Accordingly, as Pt VII of the Navigation Act contains no provision dealing with the ownership of wreck in territorial waters, there is no foundation for a conclusion that provisions of State law dealing with the ownership of wreck in those waters are inoperative on the ground of inconsistency. The possibility that there is an inconsistency between s. 308 and the provisions 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 inoperative only to the extent of the inconsistency. (at p336)

25. 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 ownership 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 ownership of the wreck which occurs after the ship foundered or was stranded. The existence of a State law divesting title from the original owner of a wreck is therefore not inconsistent with ss. 303 and 305. (at p336)

26. The consequence is that s. 317 confers on the plaintiff, if he can make out the case pleaded and subject to the questions which remain to be considered, a right to recover salvage from the owner of the Gilt Dragon. 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 right of the State or in an instrumentality 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 itself. In the result s. 20B (2) of the Museum Act, 1959-1964 was effective to vest title in the Gilt Dragon in the Board on behalf of the Crown in right of Western Australia, subject to the plaintiff's claim for salvage under s. 317. Although it is a matter which may have no practical relation to the controversy between the parties, it is my opinion that there is no inconsistency between the provisions of the Navigation Act and the provisions of s. 20A of the Museum Act dealing with notification of the finding of an historic wreck and s. 20C of the same Act imposing a restriction on the sale of property recovered from an historic wreck. (at p337)

27. For the same reasons there is no inconsistency between the Navigation Act and s. 40 of the Museum Act, 1969 to the extent to which it relates to historic wrecks below low-water mark, in particular s. 40 (3) which vests the historic wrecks mentioned in the Schedule, including the Gilt Dragon, in the defendant. The same conclusion must be reached in relation to s. 42 of the same Act which is similar in substance to s. 20C of the Museum Act, 1959-1964. (at p337)

28. Likewise there is no inconsistency between the Navigation Act and ss. 6 and 7 (2) of the Maritime Archaeology Act, 1973 to the extent to which these provisions apply to historic ships and maritime archaeological sites below low-water mark. Section 6 is effective to vest in the defendant title to the Gilt Dragon, formerly vested by the Museum Act in the Board. And s. 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. (at p337)

29. The final question to be considered is that of an alleged inconsistency between the Seas and Submerged Lands Act and the State legislation. I do not agree with the submission that this Court in the Seas and Submerged Lands Case (1975) 135 CLR 337 held that the Act conferred on the Crown in right of the Commonwealth proprietary rights in the seabed. No member of the Court so decided and two members of the Court expressed the contrary view (1975) 135 CLR, at pp 475, 497 . For my part, I adhere to the view which I then expressed (1975) 135 CLR, at p 470 according to which the source of Commonwealth legislative power with respect to the seabed is to be found in s. 51 (xxix.) of the Constitution. (at p337)

30. There is to my mind no inconsistency 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 Maritime Archaeology Act stands in a different situation. By s. 6 (1) it purports to vest property in and the right to possession of all historic ships and maritime archaeological sites in the defendant on behalf of the Crown. "Maritime archaeological site" is defined by s. 4 (1) so as to include areas of the seabed. The provisions of s. 6 of the Maritime Archaeology Act, 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 is inoperative but this leaves operative so much of s. 6 as vests title to the Gilt Dragon in the defendant. (at p338)

31. In the result, subject to making a declaration that s. 6 of the Maritime Archaeology Act is inoperative in its application to maritime archaeological sites, I would allow the demurrer. In reaching this conclusion I leave aside the fact of the Historic Shipwrecks Act 1976 (Cth) which came into operation after the commencement of the action and after the demurrer was heard by this Court. (at p338)

JACOBS J. What remains of the Gilt Dragon and its contents, sunk 2.87 nautical miles off the west coast of Australia in 1656, is maritime property and is derelict in the sense in which that word is used in maritime law. Such derelict is to be distinguished from res derelicta or res nullius in the sense of the common law, a chattel abandoned by the owner with no intention of retaining his property therein. Such a chattel when it is thrown into the sea 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 is a thing abandoned and deserted at sea by those in charge of it without hope on their part of recovering it and without intention of returning to it (see Kennedy on Civil Salvage, 4th ed. (1958), at p. 387) but with no intention on the part of the owner of abandoning his property therein. (at p338)

2. 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, "Admiralty Droits and Salvage", Law Quarterly Review, vol. 15 (1899), p. 353. The learned author traces the claim of the English Crown in its office of Admiralty to droits on findalls, which include derelict of the sea, the early recognition of the rights of salvors and the later recognition of rights in the owner. "Soon after the High Court (of Admiralty) records begin" (in the sixteenth 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 nineteenth 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 it 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 (see pp. 359, 361). Marsden summarized his 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 it could get them. So rarely, however, did it get them, by reason of embezzlement and concealment by the finder, that it was found advisable to concede one-half to the finder. This phase of the law is contemporary with the charter of Edward I to the Cinque Ports. Subsequently the rights of the original owner were recognized, and, as against him, and also as against the Crown, the finder was compelled to accept a reasonable reward for his pains. In the case of unclaimed goods the right of the finder to one-half continued to the last century, but was reduced to one-third in or before 1836." (at p339)

3. It is a question whether s. 523 of the Merchant Shipping Act, 1894 (Imp.) or ss. 302-309 of the Navigation Act 1912 (Cth), or any of them, apply to a wreck (which is 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. (at p339)

4. Apart from that legislation, the position would appear to be as follows. The true owner of this maritime 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 Crown in its office of Admiralty is under the law of the prerogative entitled to the derelict as a droit of Admiralty. Any finder of the derelict is entitled to claim salvage or reward provided that he reports his find. The amount thereof in modern times depends on the principles developed in civil salvage cases. Derelict is no longer subject to any fixed distinct rules. See Kennedy on Civil Salvage, 4th ed. (1958), pp. 178-180. A person who locates a ship in danager and distress is entitled to salvage, if his efforts have contributed to the ultimate saving of ship or cargo. See The American Farmer (1947) 80 CLR 672 . There is no reason why this principle should not also apply to derelict where the location of the derelict by the claimant is a cause of the recovery of the property. This would always be a question of fact in the salvage proceedings. (at p339)

5. 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 subsequently he was unable to locate it 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 April 1963 rediscovered the wreck. If it were not for the Western Australian legislation vesting the ship and articles recovered therefrom in the Museum (with exceptions in the case of articles which are not applicable: see s. 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 Admiralty on all property recovered from the derelict, in the past or in the future. If it was condemned unclaimed as a droit he would be entitled to an appropriate reward out of the droit: cf. R. v. Two Casks of Tallow (1837) 3 Hag Adm 294, at p 299 166 ER 414, at p 416) . 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 contribution which his location of the derelict made to the salving of it. But his right to claim is sufficient to give him a standing to challenge the validity of the Western Australian legislation which stands in the way of such a claim. (at p340)

6. By s. 6 of the Seas and Submerged Lands Act 1973 (Cth) sovereignty in respect of the territorial sea is vested in and exercisable by the Crown in right of the Commonwealth. Thereby in respect of the territorial sea all prerogatives of the Crown are vested in and exercisable by the Crown in right of the Commonwealth. (at p340)

7. Sovereignty vested in the Crown in right of the Commonwealth in respect of the territorial sea carries with it the sovereign right of the Crown to dominion over the territorial sea and to dominion over those things in on or under the sea over which by any law, including the law of the prerogative, the Crown has dominion. A derelict is such a thing subject only to the claim of the true owner. Unless there is a statute of the Commonwealth which affects this prerogative, then this prerogative right is vested in the Crown in right of the Commonwealth. Section 16 (b) of the Seas and Submerged Lands Act 1973 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 sovereign right of dominion otherwise than as provided in preceding provisions of Pt II of the Seas and Submerged Lands Act. Section 6 of the Maritime Archaeology 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 historic ships and maritime 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, and is excluded from operation, where the historic ships and maritime archaeological sites are situated in the territorial sea of Australia within the meaning and extent of those words in the Seas and Submerged Lands Act 1973 (Cth). Section 8 and s. 9 of the Western Australian Act do not extend to historic ships 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 inapplicable. (at p341)

8. So far I have assumed that no statute of the Imperial or the Commonwealth Parliament other than the Seas and Submerged Lands Act 1973 is applicable. I shall now consider the statutes which may be applicable. (at p341)

9. The Merchant Shipping Act, 1894 (Imp.) s. 523 recognized and gave statutory form to the entitlement of the Crown to all unclaimed wreck found in any part of the dominions of the Crown. The Crown here referred to is the Crown in right of the United Kingdom, and the operation of this section in Australia is displaced by the Seas and Submerged Lands Act 1973. 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, e.g., the Wreck Act, 1887-1889 (W.A.)), would be the subject of proceedings in Admiralty in accordance with the law and practices of that Court applicable in the United Kingdom before the introduction of the special procedures provided in the Merchant Shipping Act, 1894 and the statutes which preceded it on this subject. See 6 &7 Will. IV c. 60; 9 &10 Vict. c. 99; 17 &18 Vict. c. 104. But in Australia in 1912 the Navigation Act 1912 made provisions in respect of Australia analogous to ss. 518-528 of the Imperial Act. It went further in that it provided by s. 302 that not only where a person found or took possession of any wreck (which by definition included derelict) in Australia, but also where having found or taken possession of any such wreck outside Australia he subsequently brought it within the limits of Australia he should give notice to the receiver and by 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. Following sections provide how the receiver should deal with it. See particularly ss. 305 and 309. It appears to me that the Navigation Act 1912 in ss. 302 et seq. is dealing with wreck found or taken possession of after its passing. It is not dealing 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 coming into operation of the Navigation Act 1912 ought to have been the subject of notice to the receiver 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 his claim 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 prescribed and pay the balance to the Consolidated Revenue Fund of the Commonwealth. (at p342)

10. 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, s. 40 (3) of the Museum Act, 1969-1973 and s. 6 (1) of the Maritime Archaeology Act, 1973 are clearly inconsistent. It has been submitted that there is no power in the Commonwealth to make laws with respect to derelict situated in the territorial sea, at least where there is 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 law falling within s. 51 (xxix.) for the reasons expressed by the majority of this Court in the Sea and Submerged Lands Case (1975) 135 CLR 337 . (at p342)

11. 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 in 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. Thereafter it would appear to make little but a procedural difference whether the rights of the Commonwealth are to be found in s. 309 of the Navigation Act 1912 or in the prerogative right of the Commonwealth Crown in respect of the territorial sea. (at p342)

12. I would overrule the demurrer. (at p342)

MURPHY J. The Gilt Dragon and other centuries-old shipwrecks lying off the Australian coast are part of the national heritage. The Netherlands Government (the successor to the property and assets of the Dutch East India Company) recognized this and on 6 November 1972, transferred all its right title and interest in the Gilt Dragon and other vessels to the Australian Government. The remains of the Gilt Dragon are on or are part of the seabed under the territorial sea of the Western Australian coast. (at p343)

2. 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 sovereignty over the territorial sea, seabed and subsoil is in the Crown in right of the Commonwealth (see New South Wales v. The Commonwealth (the Seas and Submerged Lands Case) (1975) 135 CLR 337 ). (at p343)

3. The ownership of the remains of the Gilt Dragon is incident to national sovereignty (United States v. Maine (1975) 420 US 515 (43 Law Ed 2d 363) ); the disposition of the remains (including cargo) is for the Australian Government exercising the executive power of the Commonwealth (see s. 6 of the Constitution and s. 6 of the Seas and Submerged Lands Act). (at p343)

4. Section 317 of the Navigation Act 1912 (Cth) provides for right to salvage in respect of wrecks on or near the coast (including articles or goods from a wrecked ship). The Navigation Act's provisions apply to ships wrecked before or after its commencement and they are valid. The Commonwealth Parliament has plenary power under the external affairs power to legislate for shipping (whether intra-state, interstate or overseas) in and beyond the territorial sea and may make any provision it thinks fit for wrecks in or under the sea or on the coast. International acceptance is the practical limitation upon the exercise of the power. The Australian Parliament has now exercised such power in the Historic Shipwrecks Act 1976. (at p343)

5. In my opinion, s. 308 of the Navigation Act applies to wrecks in the territorial sea. The general intention of Pt VII suggests that the phrase, "in Australia", used there is not restricted to wrecks which are landwards of the low-water mark in internal waters. (at p343)

6. The Merchant Shipping Act, 1894 (Imp.) is inapplicable. The United Kingdom Government has no rights in the wreck. Many provisions of the Merchant Shipping Act, 1894 if applicable would treat Australians and Australian governments 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 is no longer part of that system. The Act is quite inconsistent with the present relationship between the United Kingdom and Australia. Apart from that general basis of inapplicability, in so far as s. 523 of the Merchant Shipping Act purports to apply to the subject of wrecks dealt with by the Navigation Act, it is inconsistent with the Navigation Act (Pt VII) and is therefore invalid in Australian law. It is also invalid because of inconsistency with the Seas and Submerged Lands Act. (at p344)

7. The Maritime Archaeology Act, 1973 (W.A.) purports to vest property in historic ships and maritime archaeological sites under the territorial sea in the Western Australian Museum on behalf of the Crown in right of Western Australia (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, it was not within the legislative 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 legislative competence over the area which is outside Western Australia (see the Seas and Submerged Lands Case (1975) 135 CLR 337 ). Assertion of dominion and control over wrecks and archaeological sites outside its territory is not within the extra-territorial competence of a State. Section 20B (2) of the Museum Act, 1969-1973 (W.A.) and s. 6 (1) of the Maritime Archaeology Act, 1973 were not within 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 Maritime Archaeology Act would also be inconsistent with the Seas and Submerged Lands Act. (at p344)

8. 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 doing so. The State laws appear to debar his salvage claim. In Baker v. Carr (1962) 369 US 186, at p 204 (7 Law Ed 2d 663, at p 678) , 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 controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." (See also Flast v. Cohen (1968) 392 US 83, at p 99 (20 Law Ed 2d 947, at p 961) ; Crouch v. The Commonwealth (1948) 77 CLR 339 ). (at p345)

9. The demurrer should be overruled. (at p345)

Orders

Demurrer overruled with costs.