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6 MLAANZ Journal 3 (1989)

handle is hein.journals/ausnewma6 and id is 1 raw text is: Criminal law on the high seas Sir Harry Gibbs* The Jollowing is the text of the F. S. Dethridge MemorialA ddress delivered to theMaritime Law Association ofA ustralia andNew Zealand on 9August 1988. I ar honoured by the invitation to deliver this address which com- memorates Mr F. S. Dethridge, an eminent Melbourne solicitor who was a founder of this Association. It is somewhat surprising that during a large part of those centuries when Britain really ruled the waves, the law of England relating to crimes on the high seas should have been as difficult and obscure as it in fact was. One reason for this lay in the fact that the philosophy of international law, which was reflected in national laws, was developing and changing; another reason was that for some purposes it was necessary to determine the limits of the jurisdiction of the court of admiralty, which were not always clearly defined. The position has not been made any dearer by the fact that one finds in statutes and judgments a confusion between two different concepts. When an individual is charged with a criminal offence allegedly committed on the high seas, two different questions arise - first, did the criminal law which created an offence of that kind apply at the place where the offence was committed, and second, if so, did the court have jurisdiction to try it? To say that a person committed a murder or a theft as sea - for instance on a boat, an oil rig or an iceflow - is to make the assumption that some law applies that has the effect that what would be murder or theft on land is also murder or theft in that part of the sea. That question, which is the principal one, concerns the ambit of the application of the criminal law but it has not always been kept distinct from the secondary question of the extent of the jurisdiction of the court before which the accused is brought. Where the court before which the charge was laid was a colonial court, the position was made more complex by questions concerning the application and effect of Imperial statutes and the limits of colonial legislative power. Some of the complexities of the law have been removed by comparatively recent legislation in Australia, but as will be seen, echoes of some of the old doubts persist. Even the expression the high seas is not without ambiguity. The common law did not recognize such a thing as a territorial sea. Originally at * PC, (MG, KBE, frrmer Chef.Justce of Austria,

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