Lloyd's Maritime and Commercial Law Quarterly
PROPOSED REFORMS OF ADMIRALTY JURISDICTION IN AUSTRALIA
B.J. Davenport Q. C.*
The Commonwealth of Australia has over 12,000 miles of sea coast. Each year a very large number of merchant ships must call at Australian ports, almost all of them being registered in non-Australian ports and many of them flying flags of convenience. The need for an effective means of enforcing claims which arise in Australian courts in connection with such ships would seem to be obvious, yet the Australian legislation on this subject is antique, unsatisfactory and uncertain in its effect. This state of affairs is the background to Report No. 33 of the Australian Law Reform Commission, Civil Admiralty Jurisdiction.1
The Australian Law Reform Commission was set up in 1973. Its purpose is to provide advice on legal policy to the Australian Federal Government and Parliament.2 The Commission is one of some 40 law reform agencies which now exist throughout the common law world. Because Australia is a Federal State, each of the individual states and territories within Australia has its own legal system and its own law reform agency. Although all the systems are based upon the common law, a measure of mutual antipathy between some of the jurisdictions is not unknown and this makes it difficult for the Federal Commission to carry out one of its functions, namely “to consider proposals for uniformity between laws of the Territories and laws of the States”.3 Moreover, at least until recently, the Commission seems at times to have demonstrated a particular political philosophy which may not always have endeared it to every one of the individual states.4 This philosophy seems almost to have been calculated to produce disunity, rather than unity. Fortunately, Civil Admiralty Jurisdiction demonstrates no political philosophy to which even the most touchy state could take exception. The Commissioner in charge of the reference was Professor J. R. Crawford, who is now the Challis Professor of International Law at the University of Sydney and a member of the Australian Judicial System Committee of the Australian Constitutional Commission.5 The Report is not only a model of what such a report should be, but ought to be compulsory reading for anyone concerned with the jurisdiction of a court hearing maritime
* Law Commissioner for England and Wales
1. Australian Government Publishing Service, Canberra, 1986. ISBN 0 644 013540.
2. The Commission has five full-time members and 14 part-time members. It employs 18 lawyers on its staff. Its offices are at 99 Elizabeth Street, Sydney, NSW, Australia (Box 3708, GPO, Sydney, 2001, Australia).
3. Law Reform Commission Act 1973 (Cth.), s. 6(d).
4. For an example of this philosophy, see the tributes to the late Justice Murphy in reform, No. 45, the “regular bulletin of law reform news, views and information” published by the A.L.R.C.
5. Professor Crawford had previously been the Commissioner in charge of the Commission’s much-respected work on Aboriginal Customary Law.
317