6 Austl. & N.Z. Mar. L.J. 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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