Australia's Recent Legislative Reforms Concerning Underwater Cultural Heritage
(2018) 32 A&NZ Mar LJ 73
a. provide an introduction to each of the five key issues that are identified in Question 2 above, so as to
enable an understanding of each of those issues to be developed;
b. analyse how the UCH Act and the UCH Transitional Act (as the case may be) have addressed each of
those five key issues; and
c. analyse whether the UCH Act and the UCH Transitional Act (as the case may be) have appropriately
remedied the deficiencies or inadequacies of the HS Act, as well as the wider legal regime for
protection of specific types of UCH at the Commonwealth level in Australia ( as per Question 1 above).
The fourth section of the article provides some concludi ng remarks in relation to the matters discussed in the
earlier sections of the article, and summarises the key findings reached in this article.
2 Why Is There A Need for Legal Protection Of UCH?
In order to answer the question of why there is a need for protection of UCH, one must first have an
appreciation of what UCH means. T he task of defining UCH is often a difficult and controversial one.10 For the
purposes of the discussion which follows in this section of this article only, the following (broad and refined)
definition of UCH articulated by O’Keefe will be adopted as a working definition: ‘the [UCH] consists of traces
of human activity from past epochs [that are located underwater]’.11
UCH has existed in the world ’s seas and oceans for centuries. 12 The main form of UCH that exists in the
world’s seas and oceans is shipwrecks and the cargoes associated with those wrecks, although UCH can also
take other forms.13
Until the latter half of the 20th century, it was generally the case that the only body of law that applied to UCH
was maritime law and, more specifically, the laws of salvage and derelict (or finds).14 The la ws of salvage and
derelict are well explained elsewhere in the literature.15 It suffices here to briefly summarise the essence of each
of these areas of maritime law.
First, in relation to the laws of salvage, the notion of salvage, at its core, involves the ‘re ndering of assistance to
vessels and their cargo in distress at sea, whether afloat, shipwrecked or sunken’.16 The overarching objective of
salvage and the law that regulates it is to ‘encourage persons to render prompt, voluntary, and effective service
to ships at peril or in distress by assuring them compensation and reward for their salvage efforts’.17 Having
regard to the harmonised legal regime for salvage created by the Interna tional Convention on Salvage 1989
(1989 Salvage Convention)18 and the existing common law position in Australia, it is evident that there are five
essential elements for being able to successfully establish a claim of salvage:
10 Craig J S Forrest, ‘Defining ‘underwater cultural heritage’’ (2002) 31 Internationa l Journal of Nautical Archaeology 3, 3.
11 Patrick J O’Keefe, ‘Protecting the underwater cultural heritage: The International Law Association Draft Convention’ (1996) 20 Marine
Policy 297, 297.
12 For a useful overview of the forms of UCH that have been identified in different periods of human history, see generally Hance Smith and
Alastair Couper, ‘The management of the underwater cultural heritage’ (2003) 4 Journa l of Cultural Her itage 25.
13 See Smith and Couper, above n 12, 25-29.
14 The law of finds is commonly referred to in the United States, whereas the law of derelict is referred to in Australia and the United
Kingdom: see Michael White, Australian Mar itime Law (Federation Press, 3rd ed, 2014) 456.
15 On the law of salvage and derelict generally, see, eg, William Tetley, Internationa l Maritime and Admiralty Law (International Shipping
Publications, 2002) ch 8 (written from an international and comparative law perspective) and Martin Davies and Anthony Dickey, Shipping
Law (Thomson Reuters, 4th ed, 2016) ch 20 and 21 (written from a predominantly Australian perspective). For a detailed explanation of the
interaction between laws addressing salvage, finds and UCH, see, eg, Sarah Dromgoole, Underwater Cultura l Heritage and Internationa l
Law (Cambridge University Press, 2013) 167-209 and Craig Forrest, International Law and the P rotection of Cultural Heritage (Routledge,
16 J Ashley Roach, ‘Shipwrecks: Reconciling Salvage and Underwater Archaeology’ in Myron H Nordquist and John Norton Moore (eds),
Oceans Policy: New Institutions, Challenges and Opportunities (Martinus Nijhoff Publishers, 1999) 305, 314.
17 RMS Titanic Inc v Haver, 171 F 3d 943,  (4th Cir, 1999).
18 International Convention on Salvage, opened for signature 28 April 1989, 1953 UNTS 194 (entered into force 14 July 1996) (‘1989
Salvage Convention’). Australia is a party to the 1989 Salvage Convention. For a comprehensive review of this international convention,
see generally Nicholas Gaskell, ‘The 1989 Salvage Convention and the Lloyd’s Open Form (LOF) Salvage Agreement 1990’ (1991) 16
Tulane Maritime Law Journal 1, 1-76 and Edgar Gold, ‘Marine Salvage: Towards a New Regime’ (1989) 20 Journal of Maritime Law and
Commerce 487, 497-502.