Ship shape or all at sea? A preliminary assessment of Australia's recent legislative reforms concerning underwater cultural heritage

Author:Guy Jesse Dwyer
Position:BSc LLB (Hons I) (Macq), LLM (w/ Excellence) (UNSW), Senior Associate, Ashurst (Sydney) and Associate, Centre for Environmental Law, Macquarie University. This article builds on research that I completed as part of my postgraduate studies in the Law of the Sea course run by the University of New South Wales, and the Maritime Law course run by...
Pages:71-119
SUMMARY

The Australian Parliament’s new legislation for regulating the protection of Australia’s underwater cultural heritage – the Underwater Cultural Heritage Act 2018 (Cth) – recently received assent. The Act is to commence on a date fixed by Proclamation or, if no such date is fixed, on 25 August 2019. When it commences, the Act will serve to modernise and expand upon the existing regime for... (see full summary)

 
FREE EXCERPT
(2018) 32 A&NZ Mar LJ 71
SHIP SHAPE OR ALL AT SEA? A PRELIMINARY ASSESSMENT OF
AUSTRALIA'S RECENT LEGISLATIVE REFORMS CONCERNING UNDERWATER
CULTURAL HERITAGE
Guy J Dwyer*
Abstract
The Australian Parliament’s new legislation for regulating the protection of Australia’s under water
cultural heritage the Underwater Cultural Heritage Act 2018 (Cth) recently received assent.
The Act is to commence o n a date fixed by Pro clamation or, if no such date is fixed, on 2 5 August
2019. When it commences, the Act will serve to modernise and expand upon t he existing regime
for protection of specific forms of underwater cultural heritage. The purpose o f this article is to
provide a preliminary assessment of Australia’s recent legislati ve reforms concerning underwater
cultural heritage with a view to determining whether these reforms are likel y to succeed in
practice. It is ultimately concluded that, for the most part, the Australian Par liament is generally to
be congratulated on an Act that is well drafted, structured and easy to understand. So lo ng as
sufficient resources and funding are provided to those with responsibility for implementing and
administering the Act, it is generally considered that the Act has good prospects of succeeding in
practice. Whilst recognising that the new Act represents a significant improvement on its
predecessor the Historic Shipwrecks Act 1976 (Cth) and places Australia once more at the very
forefront of domestic responses to global calls for legal pr otection of underwater cultural heritage,
this article identifies some deficiencies or inadequacies in the new Act that could be improved, and
makes some recommendations for improving those deficiencies or inadequacies.
1 Introduction
On 24 August 2018, the Australian Parliament’s new le gislation for regulating the protection o f Australia’s
underwater cultural heritage the Underwater Cultural Her itage Act 2018 (Cth) (UCH Act) received assent.
Assent was also given on t his date to the Underwater Cultural Heritage (Consequentia l and Transition al
Provisions) Act 2018 (Cth) (UCH Transitional Act), which addresses the consequential and transitional matters
arising from the enactment of the UCH Act.
As at the date of writing, the UCH Act and UCH Transitional Act have not yet commenced. The former is to
commence on a date fixed by Proclamation or, if the provisions of t he UCH Act do not commence by 24 August
2019, the UCH Act will commence on 25 August 2019.1 The substantive provisions of the UCH Transitional
Act will commence at the same time that s 3 of the UCH Act comes into force.2
The UCH Act is to be underpinned by subordinate legislation known as the Underwater Cultural Heritage Rules
(UCH Rules).3 At present, the UCH Rules have not been made and, as far as the author is aware, no draft of
those rules has been, or is required to be, made publicly available for consultation.
In summary, the key aims or objectives of these UCH law reforms are to:
a. modernise and expand upon the existing Australian legisl ative regime for the protection of specific
forms of UCH namely, the protection of historic shipwrecks and relics under the Histo ric Shipwrecks
* BSc LLB (Hons I) (Macq), LLM (w/ Excellence) (UNSW), Senior Associate, Ashurst (Sydney) and Associate, Centre for Environmental
Law, Macquarie University. This article builds on research that I completed as part of my postgraduate studies in the Law of the Sea course
run by the University of New South Wales, and the Maritime Law course run by the University of Queensland, in 2017. The views
expressed in this article are my own, and do not represent the views of Ashurst or any other third party. I take responsibility for any errors
contained herein. I record my sincere thanks to the anonymous reviewers for their helpful feedback on an earlier draft of this article, and
Tristan Orgill for his assistance in transforming my handwritten scribbles into the flowchart that forms Appendix 1 to this article.
1 Underwater Cultura l Heritage Act 2018 (Cth) s 2.
2 Underwater Cultura l Heritage (Consequential and Transitiona l Provisions) Act 2018 (Cth) s 2.
3 Underwater Cultura l Heritage Act 2018 (Cth) s 61.
Australia's Recent Legislative Reforms Concerning Underwater Cultural Heritage
(2018) 32 A&NZ Mar LJ 72
Act 1976 (Cth) (HS Act) by repealing the HS Act and replacing it with the UCH Act, which has been
drafted to provide for the protection of a greater variety of UCH;4
b. provide a legislative framework for the identification, protection and conservation of Australia’s UCH; 5
c. enable Australia to implement, in a cooperative manner, its ‘national and international maritime
heritage responsibilities’,6 particularly those responsibilities Australia would have under the UNESCO
Convention on the Protection of Underwater Cultural Heritage (UNESCO Convention)7 if Australia
decided to ratify it;8 and
d. ‘promote public awareness, understanding, appreciation and appropriate use of Australia’s [UCH]’. 9
The purpose of this article is to provide a preliminary assessment of Australias recent legislative refor ms
concerning UCH with a view to determining whether these reforms are likely to succeed in practice. More
specifically, the preliminary assessment conducted in t his article will involve examination of the following three
questions, the answers to which it is submitted will influence the ability of the UCH Act to succeed:
1. What deficiencies or inadequacies in the existing legal regime for protection of specific types of UCH
at the Co mmonwealth level in Australia should the UCH Act be seekin g to remedy, and has the UCH
Act appropriately remedied those deficiencies or inadequacies? (Question 1 )
2. Has the UCH Act appropriately addressed the following five key issues that arise in the context of legal
protection of UCH:
a. the definition of UCH;
b. the sovereign immunity of sunken warships and other State-owned vessels;
c. the application of the law of salvage to UCH;
d. the ownership and abandonment of maritime property that constitutes UCH; a nd
e. the regulation of maritime and other related activities that involve the interaction with, or use
of, UCH (Question 2).
In order to situate the preliminary assessment conducted in this article in its proper context, this article is
structured into four sections. The first section of this article provides some brief commentary on the reaso ns
why there is a need for legal protection of UCH. The second section introduces the HS Act and other pieces of
legislation that may be regarded, by inference, as ap plying to UCH. It then considers the reasons why the HS
Act, as well as the wider legal regime for protection of specific types of UCH at the Commonwealth level in
Australia, has bec ome deficient o r inadequate for protection of UCH in Australia. T he third section provides a
preliminary analysis of the UCH Act and UCH Transitional Act (as the case may be) with a view to determining
whether these reforms are likely to succeed in practice. The structure of that preliminary analysis will not be to
set out, section-by-section, the content of each of these two Acts. Rather, the preliminary analysis will proceed
in the following sequence:
4 Explanatory Memorandum, Underwater Cultural Heritage Bill 2018 (Cth) and Underwater Cultural Heritage (Consequential and
Transitional Provisions) Bill 2018 (Cth), available at http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6095_ems_603b0427-
5576-4e67-90fa-d78302d30a52/upload_pdf/668471.pdf;fileType=application%2Fpdf.
5 Underwater Cultura l Heritage Act 2018 (Cth) s 3(a).
6 Underwater Cultura l Heritage Act 2018 (Cth) s 3(b).
7 Convention on the Protection of Underwater Cultural Her itage, opened for signature 11 February 2001, 41 ILM 40 (entered into force 2
January 2009) (‘UNESCO Convention’).
8 Australia is not a party to the UNESCO Convention and has not ratified it. However, in the Minister’s Second Reading Speech introducing
the Underwater Cultural Heritage Bill 2018 (Cth), the Minister indicated that much of the content of the Bill resulted from ‘Australia’s
consideration of ratification of the [UNESCO Convention]’. The Minister’s Second Reading Speech did not go further to suggest that the
purpose of the Bill was to ratify the UNESCO Convention. Further, in the Explanatory Memorandum to the Bill, it was also not stated that
the purpose of the Bill was to ratify the UNESCO Convention; instead it was said that the Bill ‘modernises the regulatory framework to
protect Australia’s underwater cultural heritage and includes measure to align the legislation with current international best practice
standards for the protection and management of underwater cultural heritage as defined by the [UNESCO Convention]’.
9 Underwater Cultura l Heritage Act 2018 (Cth) s 3(c).
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 OKeefe 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
worlds 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,
2010) 287-361.
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, [23] (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.

To continue reading

REQUEST YOUR TRIAL