University of Tasmania
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The development and comparative aspects of Australian Maritime Law

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posted on 2023-05-26, 01:51 authored by Wong, JCK
The development of Australian maritime law was closely associated with Britain's Empire-building. To promote, and later consolidate, trade and security links within til£'1 Empire, a large merchant fleet to be manned almost t exclusively by British seamen was created. For merchant shipping to operate as an effective and coherent force, a single body of law was specially enacted to regulate this enterprise. Maritime law was a domain for the Parliament of Great Britain and later the United Kingdom. The nature and content of this subject, as imported, administered and developed in the Australian colonies, and later States, are analysed in the light of the Imperial goals. This body of law developed and changed in conformity with the Imperial objectives. The use of paramount legislation, the invalidation of inconsistent colonial laws and the establishment of courts in the colonies, and later States, to administer Imperial maritime law were clearly part of a coordinated Imperial strategy. The mechanisms for exacting compliance by Commonwealth legislators continued until the Statute of Westminster 1931 (Imp.) was adopted. One of the main problems which the High Court had to resolve was the recurring conflict between Commonwealth and State legislation on shipping. The cause in most cases was the lack of precision between the powers conferred under the Commonwealth Constitution and those exercisable by meeting the requirements of the Imperial legislation. Several High Court decisions have significantly enlarged the role of Commonwealth legislation at the expense of State legislative powers. The major differences between the maritime laws of Australia and the United Kingdom are traceable to several factors. First there was delay or failure by the Commonwealth and State Parliaments to extend to Australia or the States the operation of those provisions of' the United Kingdom's legislation that would not otherwise apply. Second, the existing backwardness of Australian maritime law has stemmed from a prolonged indifference to a number of international conventions which have produced vital changes in maritime law. Third, Australia's departure from the strict \British ship\" concept has led to a marked relaxing of the requirements for owning Australian ships or shares therein. Wherever considered appropriate emphasis is placed on the advantages which proceedings in rem have over common law actions. The comparative analysis has brought to light many anomalies. With regard to a number of maritime matters the laws of the Commonwealth and several States are inconsistent. In many instances it is patently illogical for penalties and strict liability to be imposed personally on shipowners and the master under the anti-pollution laws. Often the enforcement of such laws may also result in the unjustified destruction of maritime property with the consequent loss of the existing maritime liens and other claims against the ship and freight. A workable solution may be found by integrating anti -pollution legislation with maritime law. Moreover the methods for enforcing payment of statutory compensation for accidental injury or death suffered by seamen are examined with the view to strengthening the position of claimants. The various problem areas and anomalies highlighted are dealt with in the context of the reforms and changes which are deemed desirable to upgrade Australian maritime law. Chapter Nine discusses the important benefits and new protection that will be conferred on maritime claimants when the Draft Admiralty Bill 1985 enacted as law."


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