Robinson v Western Australian Museum - [1977] HCA 46 - HCA 1977 case summary — Zoe

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Robinson v Western Australian Museum

[1977] HCA 46

High Court of Australia|1977-07-01|Before: Murphy JJ

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Court

High Court of Australia

Decision date

1977-07-01

Before

Murphy JJ

Source

Original judgment source is linked above.

Judgment (173 paragraphs)

[1]

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Robinson v Western Australian Museum [1977] HCA 46

[2]

In the year 1656 a Dutch vessel named Vergulde Draeck or Gilt Dragon on its way from the East Indies to Holland in the course of trade, was blown off course and succumbed to an uncharted reef on the West Australian coast near Ledge Point, between the present towns of Lancelin and Yanchep some 40 miles or so north of Perth. The remains of the vessel thus wrecked now lie on the floor of the 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State legislation, namely the Museum Act, 1959-1964 W.A. ("the Museum Act, 1959"), the Museum Act, 1969 W.A. which Act repealed the Museum Act 1959, and the Maritime Archaeology Act, 1973 W.A. ("the Maritime Archaeology Act") are in fact void as being beyond the legislative competence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.

[27]

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.

[29]

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.

[40]

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.

[42]

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.

[44]

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. [1] and British Medical Association v. The Commonwealth [2] . 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 [3] ; British Medical Association v. The Commonwealth [4] . 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.

[46]

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.

[48]

In Pearce v. Florenca [6] 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 [7] , as follows:

[55]

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 [9] . 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 [10] . 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. [11] ) and the pleadings do not permit an answer to be given to such inquiries. 1. (1976) 135 C.L.R., at pp. 512, 520, 525. 2. (1976) 135 C.L.R. 507. 3. (1886) 33 Ch. D. 562, at p. 567.

[58]

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.

[60]

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 vested the wreck in the Board, or in the defendant, on behalf of the Crown are not repugnant to it. Section 523 probably only states what would in any case have been the Crown's entitlement by virtue of the prerogative. The Crown is one and indivisible throughout Her Majesty's dominions, although legislative and administrative power is exercised through different agencies in different places: the Engineers Case [12] ; Minister for Works (W.A.) v. Gulson [13] . Although this principle is of little practical assistance in many cases, as Latham C.J. observed in Minister for Works (W.A.) v. Gulson [14] , 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. 1. (1920) 28 C.L.R. 129, at p. 152. 2. (1944) 69 C.L.R. 338, at pp. 346-347. 3. (1944) 69 C.L.R., at pp. 350-351.

[66]

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.

[97]

The salvor's right to possession is one of a number of rights conferred upon a salvor accessory to and in aid of the earning and receipt of payment of the salvage reward. Thus a salvor is given a maritime lien for salvage services performed, which may be enforced by procedure in rem against the property saved; in aid to the earning of salvage reward the salvor is given a right to possession the nature and extent of which will depend upon whether or not the property is derelict. If derelict, as was the Gilt Dragon, a salvor who has entered into possession of it has been said to be entitled to maintain that possession even as against the subsequently discovered owner (Cossman v. West [26] ). That case concerned marine insurance and it was only for the light cast by the acts of salvors upon the question whether the property insured was a total loss, actual or constructive, that their Lordships had occasion to make passing observations concerning salvors' rights to retention of possession. It is notable that the owners in that case had no interest in the derelict; in the ensuing salvage suit the salvors were awarded the entire proceeds of sale of the vessel which amounted to considerably less than their expenses of the salvage service. In three earlier cases the basis of a salvor's entitlement to possession of derelict had been discussed. Derelicts being prima facie droits of Admiralty, Sir John Nicholl, in the Dantzic Packet [27] , described this right of salvors to exclusive possession as being "for the benefit of the Crown, in the first instance, - but subject to a liberal remuneration". In the Lady Worsley [28] , a decision of Dr. Lushington still cited as authoritative in the current edition of Kennedy on Civil Salvage, that learned judge denied a salvor's absolute right to possession of a derelict as against the owner once the salvage operation had been completed; he described any rule of that nature as "mischievous to the commercial interests at large, and to the property salved" and he refused all salvage reward to a salvor otherwise entitled to it because he had improperly excluded the owner from possession after having salved the property and before payment of any reward. He thereby reflected the view which he had earlier stated in the Glasgow Packet [29] that "the foundation upon which salvors are at any time allowed to retain possession" is only to secure upon the owners the demand for salvage reward. Likewise, at the earlier stage of actual performance of the salvage service, retention of possession is no doubt to be attributed to the law's desire to enable salvors, in the absence of incompetence, to earn their reward. As against third parties a salvor who once enters into possession of derelict is entitled thereafter to retain it during the salvage operations and, as earlier reference to The Tubantia [30] and Morris v. Lyonesse Salvage Co. Ltd. [31] has shown, may in an appropriate case protect that entitlement by injunction.

[105]

There remains the question of his right to salvage reward for articles which by his salvage services he has recovered from the wreck site. I have said that the legislation in no way adversely affects this right. It may be noted in passing that, so far as the pleadings disclose, he has, during the twelve years which have passed since rendering these salvage services, done nothing to enforce his rights in this regard either by action in rem or in personam; instead he appears to have remained in possession of some, perhaps all, of the articles recovered from the wreck site. Be that as it may, an examination of the Western Australian legislation discloses nothing which in any respect deprives him of his right to salvage reward. Indeed the legislation is rather to the contrary, being careful to avoid any interference with the plaintiff's possession or even title, if he could show any, to those articles, all of which he recovered before December 1964 when the Museum Act Amendment Act, 1964 for the first time operated to prevent further recovery. That which was, by the amending Act of 1964, for the first time vested in the Museum Board and of which it became entitled to possession is dependent upon the scope of the definition of "historic wreck". The Museum Act, 1959, following the amendments made in 1964, defined "historic wreck" so as to include, inter alia, the Gilt Dragon but in the case of "equipment, machinery or other article of whatever class or kind belonging to or separated from or which came from any such ship", including any part of the hull, the definition is restricted to such articles as are "so lying", that is, are still on the seabed. There are infelicities in the drafting of this definition but it is at least clear that articles which, when the Act came into operation in December 1964, had already been recovered from the sea were not within the definition and did not vest in the Board. Consistently with this concept, s. 20C of the amended Act provided that, while those having possession of "property that belonged to or was taken or recovered from" inter alia the Gilt Dragon 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 " must notify the Board and may be obliged to make the property available for examination by it, they are nevertheless entitled to have it returned to them after such examination, whereupon they are free to sell or otherwise dispose of it as they see fit.

[115]

On the assumption that the plaintiff would have a claim for reimbursement by way of salvage for objects recovered from the wreck, an assumption which I shall examine presently, the operation of the Museum Act and the Maritime Archaeology Act in relation to the plaintiff is such as to give him, in my opinion, a sufficient locus standi to seek a declaration of invalidity of the two Acts. The rule is generally expressed in the proposition that a person not affected in his private rights may not sue for declaratory relief (London Association of Shipowners and Brokers v. London and India Docks Joint Committee [35] ; London Passenger Transport Board v. Moscrop [36] ; and see Zamir, The Declaratory Judgment (1962), p. 247 et seq). Sometimes the rule is expressed more liberally, as it was by Gavan Duffy C.J., Starke and Evatt JJ. in Anderson v. The Commonwealth [37] when their Honours said that the right of an individual to bring an action for an ultra vires declaration does not exist "unless he establishes that he is "more particularly affected than other people" (see Brice on Ultra Vires, 2nd ed., p. 366)". The rule is said to be directed against multiplicity of actions. In truth it reflects a natural reluctance on the part of the courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions. Reflection on the considerations which underlie the rule do not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi. However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. Here the plaintiff does not seek performance of a public duty; nor does he assert that he will suffer special damage through interference with a public right - cases which are notorious for their difficulties. Here the legislation, if it is valid, deprives the plaintiff of a right of reimbursement which he would otherwise have or be entitled to claim. It also imposes obligations upon him to which he would not otherwise be subject. This is enough to support locus standi in an action for a declaration of invalidity. As Latham C.J. said, with reference to Commonwealth legislation, in Toowoomba Foundry Pty. Ltd. v. The Commonwealth [38] :

[162]

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.