Lecture in Memory and Honour of the Honourable Justice Richard Cooper: 'Australian Admiralty and Maritime Law - Sources and Future Directions'
Allsop, James, University of Queensland Law Journal
It is a great honour to be asked to give the second Annual Richard Cooper Memorial Lecture, especially following such an eminent scholar, teacher, practitioner and seafarer as Professor Edgar Gold.
This is not the time to express fully the loss to maritime law and scholarship that the untimely passing of Richard Cooper caused. It is necessary to say, however, that it was, and is, a national tragedy.
Richard Cooper was intimately involved in the law reform of the 1970s and 1980s which produced the Australian Law Reform Commission Report on Civil Admiralty Jurisdiction which led to the enactment of the Admiralty Act 1988 (Cth). (1) He had a strong belief in the need for a clear and coherent body of maritime law in this nation. He recognised the significant steps required to achieve that aim, not the least of which was the breaking of the colonial bindings of our thinking in a field where Australia's interests are so vital.
This evening, 1 seek to give a perspective on the Admiralty and maritime grant in s 76(iii) of the Australian Constitution and to emphasise the rich and diverse sources of this branch of the general law. Section 76(iii) is a Constitutional recognition of the existence of a rich and fascinating body of law of singular importance to this nation. The scope of s 76(iii) and the consequences of its place in the Constitution are important elements in the future development of maritime law in this country.
I was privileged to have the benefit of discussion and debate with Richard Cooper on this topic. Whilst the errors that may exist in this evening's lecture are mine alone, I am indebted to him for his inspiration about this topic. I must also recognise the illumination on this topic from the 1981 Dethridge Memorial Address by the Hon. Howard Zelling (2) and the article by the distinguished American judge the Honourable John R Brown in 1993. (3)
During the process of reform of the 1970s and 1980s, considerable intellectual energy was expended upon illuminating the nature and extent of colonial and Australian Admiralty and maritime jurisdiction. Some of that work expressed a justifiable lamentation at the stunted complexity of the then position governed by the Colonial Courts of Admiralty Act 1890 (Imp) under the shadow of s 76(iii) of the Australian Constitution. (4)
Many of these difficulties and complexities were cured by the clear terms and simple structure of the Admiralty Act. There remain, however, dormant questions of a basal character which, at some point, will need to be addressed if this nation is to have fully coherent and robust national Admiralty and maritime arrangements. These questions were recognised by the Law Reform Commission, (5) but its approach was not to recommend steps into potentially controversial territory; rather, its avowed aim was to reduce Australian Admiralty jurisdiction into simple, clear and coherent terms, upon its Australian Constitutional, rather than a colonial and Imperial, foundation. This aim was amply and luminously achieved.
There is a tendency, understandable given our colonial past, to examine Australian Admiralty and maritime law from an exclusively English or Imperial historical perspective. The nature and development of Australian maritime law must, however, be assessed and approached by reference to Australia as a fully independent member of the community of nations. Two elements are important in the last sentence: independence and membership of the community of nations. These two elements reflect the ever-present necessity in maritime law to balance domestic national interests with the interests of harmony in the wider world of participation in the community of nations. As a colony, these strands of interest were mediated through the institutions, law and interests of a great imperial power. Now, we must strike our own balance.
Admiralty and maritime jurisdiction is not just a collection of suits found to have been within the cognisance of, and administered by, the English Admiralty Court (exemplified by the action in rem against a ship itself and the capacity to arrest the ship irrespective of the presence within the jurisdiction of any party said to be personally responsible for any claim). …