THE COMMON LAW OF THE REALM (COMMONWEALTH OF AUSTRALIA v YARMIRR)

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Abstract:

In R v Bull, Barwick CJ of the High Court of Australia said that the ‘land and the high seas which begin at low water mark, so far as crime is concerned, remain in contrast’. He also observed there that this is a distinction that has never been eliminated. He might have added, too, that the distinction is one of ancient origin. In a statute of 1389 it is provided that ‘the Admirals and their Deputies shall not meddle henceforth with anything done within the Realm, but only such things done upon the sea’. In another statute of 1391 it is declared that the Admiral's Court ‘shall have no Manner of Cognizance, Power nor Jurisdiction’ of anything done or arising ‘within the Bodies of the Counties’. Other statutes, however, have sought to overcome the distinction by assimilating the two. For example, by the Admiralty Offences (Colonial) Act 1849 (UK) 12 & 13 Vict chapter 96 section 1 any offence ‘committed upon the sea, or ’ where the ‘admirals have power, authority or jurisdiction’ was made triable as if committed upon waters within the limits of the colony concerned. Similar provision was made in section 4 of the Australian Courts Act 1828 (UK) 9 Geo 4 chapter 83.

Keywords: Australia; Jurisdiction; aboriginal rights; admiralty; boundaries; coastline; common law; high seas; high water; land; low water; maritime; property; territorial waters

Document Type: Research Article

Publication date: January 1, 2002

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