Historic Shipwrecks Legislation

Full text

Chapter 10
Historic Shipwrecks Legislation
Bill Jeffery
10.1.
INTRODUCTION
This chapter will consider the background to Australia proclaiming the Historic
Shipwrecks Act 1976 (HSA), provide details about the provisions contained
within this legislation as well as how they are implemented, and details about
what is planned for the future. The Act, which only protects the remains of ships
and its associated articles as "historic shipwrecks" and "historic relics", is
considered to be at a crucial stage. It is nearly thirty years since the legislation
was enacted and recent developments at the international and Australian Federal
level in the field of cultural heritage management (submerged and terrestrial
sites) make it necessary for the Historic Shipwrecks Act to be reviewed. These
developments provide for a more holistic approach to the protection and
management of
all
submerged cultural heritage sites and values as well as within
a maritime historical context. This raises a number of issues, amongst which
include the suitability of other Federal legislation to help facilitate this work, as
well as the need for coordination of the various jurisdictions and their legislation
to implement these tasks.
Legislation on its own will not protect cultural heritage sites and the
Federal and State governments involved in administering the Historic
Shipwrecks Act have been very active in implementing an historic
shipwrecks/maritime heritage program throughout Australia. This chapter will
therefore provide some background about this program and how it has operated
to fulfill its objectives. It will also consider how it may be possible to develop
123

124 Maritime Arcliaeology: Australian Approaclies
the program to encompass submerged cultural heritage sites and terrestrial
maritime cultural heritage sites and values.
10.2.
BACKGROUND
In non-Indigenous terms, Australia is made up of six States, the Northern
Territory and seven external territories. The external territories are: Norfolk
Island; the Territory of Heard and McDonald Islands; the Australian Antarctic
Territory; the Territory of Cocos (Keeling) Islands; the Territory of Christmas
Island; the Coral Sea Islands Territory; and the Territory of Ashmore and Cartier
Islands. Prior to 1 January 1901 the States were colonies of Great Britain but
after that date they united to form the Commonwealth of Austraha with an
Australian Constitution. The Australian Government (variously referred to as the
Commonwealth, Federal or National Government) as well as the State and
Territory governments each have their own jurisdictions. This means that in
regard to protecting cultural heritage sites located underwater and on land.
Federal as well as State or Territory legislation is required.
The first law specifically designed to protect shipwrecks in Australia was
enacted in Western Australia. The Museum Act Amendment Act 1964 was
proclaimed on 18 December 1964 to protect four Dutch shipwrecks located off
the Western Australian coast. This legislation was enacted because these
shipwrecks were being placed under great pressure by treasure hunters, and
there was community and political will to protect them. This legislation was
amended in 1969, and again in 1973, at which time Federal legislation was
proclaimed {Seas and Submerged Lands Act 1973) that disputed State
jurisdiction in offshore waters.
The offshore jurisdictions of the Federal and State governments have
been, and remain, a complex issue. The Seas and Submerged Lands Act 1973
contains two Schedules incorporating the Convention on the Territorial Sea and
the Contiguous Zone and the Convention on the Continental
Shelf,
which were
agreed on by the United Nations on 29 April 1958. The Act declares Australian
sovereignty in the territorial sea (twelve nautical miles), contiguous zone (a
further twelve nautical miles out from the territorial sea) and the continental
shelf (to a distance of 200 nautical miles from the territorial sea baseline). The
low-water mark is the normal baseline for measuring the territorial sea but in
some cases where the coastline is deeply indented a line drawn across some bays
and joining some islands is used as the baseline. The Schedules, amongst other
things, assist in defining the baselines and the nature of the territorial sea,
contiguous zone and continental shelf
The State governments had held the view for some time that they had
sovereignty over three nautical miles of the territorial sea. In 1975 the six States
contested the validity of the Seas and Submerged Lands Act 1973 and the
outcome on 17 December 1975 was in favour of the Federal government {New
South Wales v. The Commonwealth [1975] 135 C.L.R. 337). This meant that
from the low-water mark, or from the closing lines of bays or joining islands

Historic Sliipwreclis Legislation 125
(baselines), right around Australia the territorial sea, contiguous zone and
continental shelf were deemed to lie luider the jiu"isdiction of Federal
government and not the State or Territory governments. In addition, the sea to
the landward side of the baselines is referred to as internal waters and Australia
has sovereignty in respect of these waters, with the exception of "waters within
the limits of the States", which remain under the sovereignty of the States. The
effect of
the
Seas and Submerged Lands Act
1973,
and its test in the High Court,
was that Federal legislation was required for the protection of cultural heritage
sites in the territorial sea and internal waters.
Further successfiil court action by treasure hunter Alan Robinson in 1977
against the Western Australian government tested the validity of the United
Kingdom's Merchant Shipping Act 1894 and the 1973 Western Australian
legislation (Maritime Archaeology Act 1973J and their inconsistencies with
Australia's Seas and Submerged Lands Act 1973 and the Navigation Act 1912.
This resulted in the Australian Federal government proclaiming the Historic
Shipwrecks Act 1976 to protect the Dutch shipwrecks and a number of other
significant shipwrecks (Green and Henderson, 1977; Ryan, 1977).
10.3.
HISTORIC
SHIPWRECKS
ACT 1976
On the day the Historic Shipwrecks Act 1976 received royal assent (15
December 1976) it only automatically applied to the Australian territories which
included the Northern Territory and the seven external territories. To apply to
the six Australian States, each State needed to request the Acts proclamation and
this was done in Western Australia on 3 September 1977, Queensland on 18
November 1977, New South Wales on 11 April 1979, South Australia on 8
October 1980, Victoria on 11 March 1982 and Tasmania on 23 February 1982.
Negotiations between the Federal and State governments after the
outcome of the Seas and Submerged Lands Case resulted in an offshore
constitutional settlement in which jurisdiction and proprietary rights and title
were "returned" to the States in the coastal waters - within the territorial sea and
internal waters - adjacent to the States for a distance of three nautical miles
{Port
MacDonnell Professional Fishermen's Association v. The State of South
Australia [1989] 168 C.L.R. 340). This came about through the proclamation of
the Coastal Waters (State Powers) Act 1980 which gave extra-territorial powers
to the States as provided by section 51 (xxxviii) of the Australian Constitution.
However, Federal and State governments agreed to continue to apply the
Historic Shipwrecks Act 1976 to protect historic shipwrecks in Australian
territorial waters, coastal waters of
a
State, but not "waters within the limits of
a
State". An amendment proclaimed in 1980, however, would allow a State to
request to cease its operation in that State if it so desired (Gurney, 1994).
A worthwhile description of one of the original purposes of the Historic
Shipwrecks Act 1976 can be seen in the statement made by Senator Withers
when he introduced the Bill in the Australian Federal Senate in 1976:

126 Maritime Arcliaeology: Australian Approaches
A principal purpose of
the
Bill is to provide for the continuance on a sound
legal basis of the existing high level of cooperation between
Commonwealth agencies and such State institutions as the Western
Australian Museum. The Bill therefore contains provisions that will allow
agreements to be entered into between the Commonwealth and the States
relating to implementation and enforcement of the legislation. These
include provisions enabling the Minister to delegate his powers for these
and other purposes. Such agreements would enable States to continue and
expand their efforts to preserve Australia's maritime heritage under secure
Federal legislation. At the same time, the Commonwealth will be able to
act in the Federal interest, when this becomes necessary (Hansard 1976).
This statement is indicative of how the legislation has been administered
over the last 28 years with the States playing a major role. The statement could
also be seen as an indication that the Federal government wanted the States to
increase their commitment and resources in this area. The Commonwealth
Minister responsible for the legislation (currently the Minister for the
Environment and Heritage) has delegated certain powers to State Delegates,
who are generally bureaucrats in charge of the agency authorised to implement
the Act in that State (Jeffery, 2002).
In its current form, the Act protects the "remains of ships" that are or
have been situated in Australian territorial waters and internal (coastal) waters
but not "waters within the limits of the State". This includes shipwrecks that
were once located on the seabed, but have been removed and are now located on
or under land. The definition of a ship is a "vessel that is used in navigation by
water". The Act also protects relics that were associated with ships. The usual
protection practice is to protect a shipwreck and all the relics associated with
that shipwreck. Therefore any protected shipwreck and the associated relics, if
they have been removed from Australian waters and are now on land, and
located in a museum for example, are protected.
The major provisions of the Historic Shipwrecks Act 1976 are:
• the blanket protection of all shipwrecks older than 75 years (there is
current debate on whether this applies to ships built, as well as wrecked
at least 75 years ago) through an amendment to the Act made in 1985
(the date of the last amendments made to the Act);
• an obligation on the reporting of any discovered shipwrecks;
• protection of shipwrecks and associated relics younger than 75 years;
• protection of shipwrecks significant to Papua New Guinea;
• declaration of up to a 200 hectare protected zone surrounding an historic
shipwreck;
• payment of a reward and award for the notification of a shipwreck later
declared as "historic";
• the establishment of a Register of Historic Shipwrecks and Historic
Relics;
• powers to keep a track of historic relics held by individuals;
• powers to issue permits for certain actions (that would otherwise be
illegal under the Act);
• appointment of Inspectors other than State and Federal Police; and

Historic Sliipwreclis Legislation 127
• penalties for breaching certain provisions (the maximum fine is currently
$50,000 or five years imprisonment, or both for a corporate body for
interfering with an historic shipwreck).
Guidelines have been compiled and published that assist in the
implementation of the Act, and they include a clear set of criteria for
ascertaining the significance of a shipwreck site, in addition to site and artifact
management, and establishing a shipwreck program (Henderson, 1994). In
addition, the Federal government responded to a call for a National Historic
Shipwrecks Research Plan (Jeffery, 1990a, 1993, 1994) and although its
recommendations do provide the program with some usefiil directions, it is now
in need of revision (Edmonds et al., 1995).
A review of the Historic Shipwrecks Act 1976 took place in 1990
(Kendall, 1990) although the last amendments to the Act were in 1985 -the
timing of the blanket protection provision. When this provision was proclaimed
to apply in the States in 1993, the number of protected shipwrecks went from
156 to about
5,000
(Henderson, 2001). The Act, however, was originally
designed to protect a small number of sites, predominantly the four Dutch
shipwrecks. This is highlighted by the provisions in the Act to keep a track of
relics (artifacts) and for the agencies to issue permits so the artifacts can be sold
or have their custody transferred. It is an achievable task to do this for four
shipwrecks, maybe even 100; however, it is impossible to implement this work
for
5,000
shipwrecks (and an ever-increasing number). The 1990 review also
recommended some other amendments to the legislation, namely: the
establishment of a Federal Historic Shipwrecks Advisory Committee; inclusion
of the selection criteria in the legislation; and a significant increase in the
fiinding yet they were not acted upon.
With regard to people committing offences under the Historic Shipwrecks
Act 1976 a limited number of minor infringements have been prosecuted,
resulting in minor fines in addition to the seizure of some artefacts (Jeffery,
1999b:ll-12). Two recent cases related to shipwrecks in Queensland have
brought about harsher penalties, one being an overnight prison sentence and a
fine for the diver penetration of the Yongala historic shipwreck in
2003.
The
other case arose as the result of the recovery of an anchor without a permit from
the historic shipwreck Marloo in
2003.
The offender pleaded guilty a day before
the case was to be heard and received six months imprisonment (suspended for a
period of
2
years), with a special condition that the anchor be returned to the site
within six months. This later case highlights the need for the Australian
government to properly maintain its registers. The government relied in part on
the specifications of the vessel to prosecute its case and the National Historic
Shipwrecks Database (NHSD) does provide for some of this information.
Sufficient detail could not be found in the entry for the Marloo, however, and a
reasonable amount of research on this aspect needed to be carried out by the
Commonwealth Director of Public Prosecutions to proceed with the prosecution
(Wagner, 2004).

128 Maritime Archaeology: Australian Approaches
10.4.
STATES AND TERRITORIES SHIPWRECK LEGISLATION
The various States' historic shipwrecks legislation and programs are
compatible with the Federal legislation. In some cases, such as South Australia,
the (South Australian) Historic Shipwrecks Act 1981 was drafted to mirror the
Historic Shipwrecks Act 1976, although amendments to the Federal legislation
were not mirrored by South Australia and no effective changes have been made
to the State legislation since 1981. In Victoria initially the State legislation
mirrored the Federal legislation, but this has since been incorporated into one
Act, while in Tasmania, New South Wales and Queensland, the legislation to
protect historic shipwrecks/maritime heritage sites is part of general heritage
legislation, which have been amended a number of times. In some cases
Indigenous heritage legislation is incorporated into this one Act, in other cases
they are quite separate. There have been a number of infringements prosecuted
under the various State Acts, primarily in regard to those pertaining to Protected
Zones, and in some States on-the-spot fines are used to combat these
infringements.
In Western Australia, Victoria and New South Wales, advisory or
consultative committees have been established to assist in implementing historic
shipwreck programs, and this may be part of the reason for these States having
the most effective programs in the country. Although the legislative situation in
Western Australia was briefly outlined earlier it is worth highlighting a recent
initiative. In 2002, the Heritage of Western Australia Act 1990 was used to
protect the remains of 15 submerged World War II aircraft located off Broome
(McCarthy, 2004c), something which was not possible under most State or
Federal maritime archaeology or historic shipwrecks legislation due to the
nature of the remains.
10.5.
THE HISTORIC SHIPWRECKS PROGRAM
The manner in which the Historic Shipwrecks Program operates in
Australia is that the Federal government agency, through the Department for
Environment and Heritage, delegates much of the day-to-day management to
State government agencies. A number of objectives, strategies and activities
have been developed to help guide the program (Green, 1995; Jeffery and
Moran, 2001). The Federal government provides funding to each State to
implement activities on historic shipwrecks located in Australian territorial
waters and this money is often used to employ maritime archaeologists on a
short-term or long-term, temporary basis. In addition to Federal and State Police
who are empowered to enforce legislation, a number of State government
compliance officers based in various centres around the country have been
authorized and trained as Inspectors under the Federal and State legislation.
Given the long Australian coastline, this arrangement greatly assists in
monitoring infringements as well as assisting in the public relations work of the
program.

Historic Sliipwreclis Legislation 129
The extent of historic shipwreck funding for the program has often
fluctuated and would seem inadequate for a Federal initiative. The annual
funding for the Historic Shipwrecks Program in 2003/2004 around Australia was
$390,000 compared to $330,000 in 2000/2001 and $460,000 in 1999/2000.
These funds are shared between the six States, the Northern Territory, Norfolk
Island and any other external territories to implement many of the functions
required under the Commonwealth Historic Shipwrecks Act 1976. The
Australasian Institute for Maritime Archaeology also receives some fiinding to
assist with research publications, conferences, and other activities associated
with the program.
To put this in context, this annual budget is a paltry sum when compared
to the funds that the Federal government and all the States put into their general
heritage programs. There is also a vast discrepancy between the level of
Commonwealth funding and the number of Commonwealth shipwrecks,
compared to what the States fluid and the number of shipwrecks covered by
State legislation. For instance the Commonwealth grant to South Australia
during 2000/2001 was c. $53,000 and there are approximately 350 shipwrecks
located in Australian territorial waters adjacent to South Australia. The State
agency funded a maritime heritage program at a cost of c. $160,000 (in addition
to supplying capital equipment) and there are about 450 shipwrecks located in
waters within the limits of this State. In New South Wales the comparison is
$56,700 funding from the Commonwealth for 1,465 (86%) shipwrecks lying in
Australian territorial waters, and $217,000 funding from the State government
for 247 shipwrecks within the limits of the State (Jeffery and Moran, 2001:126).
The interest in the historic shipwrecks program from the general
community and visitors to Australia is increasing. The number of visitors to
shipwreck sites and maritime museums throughout the counfry is in excess of
one million annually and the economic gain from this is substantial. On one
shipwreck site in Queensland, the Yongala, dive charter operators are taking
over 10,000 divers annually to the site and making in excess of $2 million and
the associated businesses are reaping the financial benefits from the visitors to
the region. The diving tourism indusfries around Australia are growing rapidly.
In the 1980s it was estimated that there were 45,000 licensed scuba divers in
Victoria alone. There were over one million registered dives on the Great
Barrier Reef in Queensland in 1999. In New South Wales it is estimated that
there are 70,000 trained scuba divers, and over 130 dive shops and clubs (Jeffery
and Moran, 2001:127).
Some of the State programs include in situ interpretive facilities for these
divers and other visitors, but interpretation of shipwreck sites and maritime
heritage in general is also found within the many maritime museums located
aroiuid the country. Eleven of Victoria's Maritime Museums and historic ships
atfract 244,000 visitors annually. The Western Ausfralian Maritime Museum
receives 200,000 visitors annually and its web site has 17,000 visitors per
month. New South Wales's major maritime-related museums have over 650,000
visitors annually. Many of the main atfractions at these museums are shipwrecks

130 Maritime Archaeology: Australian Approaches
because of the fascination tliey hold for the general public (Jeffery and Moran,
2001:127).
Another resource that has been instrumental in helping Australia to
achieve a viable public program is the academic field. In 1980, Curtin
University in association with the Western Australian Maritime Museum
commenced the first academic program in maritime archaeology and a number
of the current practitioners employed in the Australian States are graduates from
this coirrse. Currently, three Universities are conducting luidergraduate and
graduate programs in maritime archaeology: James Cook University in
Queensland; Flinders University in South Australia; and the University of
Western Australia.
10.6.
OTHER RELEVANT FEDERAL LEGISLATION
There are other Federal Acts that can play a role in the management of
historic shipwrecks, submerged cultural heritage sites and terrestrial maritime
heritage sites. One of the latest additions to this list is the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act), which among
other things, provides for the "protection and conservation of heritage".
Although shipwrecks and underwater cultural heritage sites are not specifically
mentioned they are covered under the general term "historic heritage" and
"heritage values of places". Recent amendments to the EPBC Act (2003) make
provision for a National Heritage List of places that are of outstanding heritage
value to Australia and meet the National Heritage criteria as assessed by the
Australian Heritage Council. At the time of writing only three sites have been
placed on this National list, and no shipwrecks or underwater sites have yet been
nominated for inclusion.
The EPBC Act requires that any proposed action having an impact on the
heritage values of a National Heritage place be referred to the Minister for
Environment and Heritage for assessment and approval. "Under the Act,
management plans for Federal and Commonwealth listed places owned by the
Australian Government must be prepared and Australian Government agencies
must not contravene such a plan." The Act also provides for a Commonwealth
(Australian Government) Heritage List - places that are owned or leased by the
Commonwealth and meet the criteria determined by the Australian Heritage
Council. The Commonwealth Heritage List of significant heritage places was
completed in 2004 and includes only one shipwreck, the SS John Penn, in New
South Wales. Although the Federal government is able to claim ownership of all
"unclaimed wreck" under the Navigation Act 1912 it is clear that the existing
Historic Shipwrecks Act is currently regarded as the singular means for
legislative protection. It is a possibility, however, that the Australian
government may, in its review of the Historic Shipwrecks Act 1976, decide to
use the EPBC Act as its main legal device to protect historic shipwrecks, as it
has done with terrestrial heritage sites. If so, it would change dramatically the
methods and the number of shipwrecks managed. It could also be seen by some

Historic Sliipwreclis Legislation 131
as taking some positive steps to adjusting Australia's underwater cultural
heritage legislation in line with the UNESCO Convention on the Protection of
the Underwater Cultural Heritage which is discussed below.
The Australian Heritage Coiuicil was established in February, 2004
through the Australian Heritage Council Act
2003.
Amongst its activities, some
of which are stated above, the Australian Heritage Council is responsible for
maintaining the Register of the National Estate, about 13,000 places of natural,
historic and Indigenous significance and which was established in 1976 pursuant
to the Australian Heritage Commission Act 1975 (now repealed). A small
number of shipwrecks have been placed on this register. The Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 also protects and manages
Indigenous heritage sites including submerged sites. The Australian National
Maritime Museum Act 1990 has provisions that may relate to artefacts from
historic shipwrecks including: the purchase, lending or hiring of maritime
historical material, the recovery of maritime historical material from the
Australian marine environment, and the disposal of maritime historical material
from collections (see Chapter 12). Finally, under the Protection of Movable
Cultural Heritage Act 1986, protected objects (which includes shipwreck
material as "Class B" objects) cannot be exported from Australia unless in
accordance with a permit or certificate.
The original Act for dealing with the remains of shipwrecks was the
Navigation Act 1912 in which the "receiver of wrecks" dealt with questions of
salvage and possession of objects from wrecks. With the promulgation of the
Historic Shipwrecks Act in 1976 the provisions of the Navigation Act relating to
older shipwrecks now considered "historic" became redundant. The Navigation
Act, however, may still apply to any shipwreck sites in very specific
circumstances such as saving human life, securing the safe navigation of ships,
or dealing with an emergency involving a serious threat to the environment - in
which cases historic shipwrecks can be removed and/or sold.
10.7.
INTERNATIONAL CONVENTIONS
The UNESCO Convention on the Protection of the Underwater Cultural
Heritage was developed primarily as a means of protecting sites in countries or
locations that were not adequately protected by existing legislation or
management practices. Although a number of major projects around the world
had demonstrated the archaeological value of submerged cultural heritage sites,
some significant shipwrecks continued to be exploited solely for their monetary
value (e.g., Mathewson, 1986; Sheaf and Kilburn, 1986). The finding of the
Titanic in international waters in 1985 (Ballard, 1987) was also a turning point
in looking at how shipwrecks should be managed, as it highlighted the
competing "ownerships" and the conflicts in managing sites, as well as bringing
within reach the techniques to search for these deeper sites.
Currently, the most applicable UNESCO Convention is the World
Heritage Convention but UNESCO has stated in its World Heritage Newsletter

132 Maritime Arcliaeology: Australian Approaclies
(No.
3,
December
1997) "It
will
be
recalled that
the
underwater heritage
is not
covered
by the
World Heritage Convention". Cleere (1993:25) stated that
shipwrecks
are not
specifically excluded
by the
terms
of the
convention
itself,
however,
the
Operational Guidelines
for the
Implementation
of the
World
Heritage Convention
lay
down (paragraph
26)
that "Nominations
of
immovovable property which
are
likely
to
become movable will
not be
considered". While
an
area surrounding Robben Island
in
South Africa
encompassing about
20
shipwrecks
is on the
World Heritage List,
for
example,
the values
of
those shipwrecks
was not one of
the justifications
for
that listing.
It
is
a
similar situation with
the
World Heritage listed Great Barrier
Reef, off the
eastern coast
of
Australia, although this area does contain numerous shipwrecks
and other types
of
underwater cultural heritage sites that
are
seen
by
many
as a
significant part
of the
area's values (MICDA, 2004). Some Australian maritime
archaeologists
are
looking into
the
issue
of
how,
and why,
shipwrecks
and
other
underwater cultural heritage sites
may be
placed
on the
World Heritage List
(Jeffery, 2004; McCarthy, 2004a).
In November 2001,
at the 31st
General Conference
of
UNESCO
in
Paris,
the Convention
on the
Protection
of the
Underwater Cultural Heritage
(CPUCH)
was
adopted
by 87
affirmative votes, thus becoming UNESCOs
foiuth heritage convention (O'Keefe, 2002).
The
Convention
has
seen
a
number
of changes since
its
inception, however,
the in
situ preservation
of all
traces
of
human existence
(not
just shipwrecks) that have been underwater
for 100
years
and
are of
cultural, historical
or
archaeological character,
and
their exemption
in
any commercial exploitation, remain
as its
fundamental objectives (O'Keefe,
2002).
Among some
of
the major provisions
of
the CPUCH
are its
application
to
all internal
and
external waterways
of
States (member countries), recognition
of
the wide variety
of
underwater cultural heritage,
and
opposition
to the
commercial exploitation
or
salvage
of
sites
(see
Forrest, 2002a, 2002b, 2003).
Once ratified,
the
CPUCH will apply
to a
country's sites, sites
in
international waters,
as
well
as its
citizens
who
wish
to
work
on
sites anywhere
in
the
world.
It is a
possibility, however, that
a
country's nationals will acquire
material from within another country that
has not
ratified
the
Convention,
and
ship
the
material
to
another non-signatory country
to
enable
the
sale
of
this
material.
The
Convention will
not
come into force until three months after
its
formal ratification
by 20
countries,
and
currently only three countries
-
Panama,
Bulgaria
and
Croatia have done this.
For
Australia
to
sign
the
Convention,
it
must firstly agree
to the
content, have
it
assessed
by
JSCOT (Joint Standing
Committee
on
Treaties),
and be
tabled
in
Parliament.
The
Australian
government
has
well-established procedures
on
conventions including
the
steps
it needs
to
take when entering into
a
convention agreement. (Jeffery, 2002:75).
The Australian government's official position
is
that "Before
a
treaty
is
ratified
a
fiill review
of the
laws
of
Australia which
may
conflict with
a
treaty needs
to be
undertaken.
All
necessary legislative amendments,
at a
State
and
Commonwealth level, should also
be
made before Australia enters into
a
treaty,
that
is, the
Government's official policy should
be
followed".

Historic Sliipwreclis Legislation 133
Australia has at least 8 Federal and 17 State or Territory Acts that apply
to sites and objects covered by the UNESCO Convention and just about the
same number of Federal, State and Territory programs which encompass their
own strategies, goals, objectives and activities. The Historic Shipwrecks Act
1976 and the State Acts have some potential conflict with some of the
provisions in the convention, eg., between the no commercial exploitation rule
contained in the convention, and the "reward" and allowable sale with a permit
provision in the Australian Federal and some State Acts.
The UNESCO Convention states that although States (such as Australia)
have exclusive rights to regulate activities directed at luiderwater cultural
heritage in its internal waters, territorial sea, and "may" regulate and authorize
activities in its contiguous zone, the Rules contained in the Convention will
apply to all waters, once they accept or ratify the Convention. Some countries
have already informally adopted these rules to apply in their management of
historic shipwrecks/submerged cultural heritage resources.
10.8.
SUMMARY AND FUTURE DIRECTIONS
Australian law was enacted in 1976 to protect historic shipwrecks,
primarily the Dutch VOC sites. This was initiated because of the threat from
treasure salvors and because Western Australian State legislation was declared
invalid to apply to those waters. Nearly 30 years later, the essentially unchanged
legislation is still being used and applied to approximately
5,000
shipwrecks,
and in some cases similar out-of-date State legislation is being administered.
The programs that accompany this legislation are very active, albeit under-
resourced, but their successes tend to hide the deficiencies of the legislation.
Legislation without an active accompanying program is not at all effective in
protecting sites. A program needs to implement activities that can demonstrate
to the community the value of historic shipwrecks and the need to protect them,
as well as involving the community in all aspects of the program, and the current
maritime heritage/historic shipwrecks program does this to some extent.
Notwithstanding limited fiinding, it is a productive and leading program when
compared to other Australian/State government programs in heritage
management.
General heritage legislation at a Federal and State level around the
country is constantly being upgraded. Some of this includes maritime
archaeology/maritime heritage/submerged cultural heritage sites, but some of it
does not. To a large extent the focus is still with a piece of legislation, the
Historic Shipwrecks Act, which protects the remains of ships that are situated in
(or have been removed from) Australian territorial waters. It does not protect
significant intact and operating vessels, or any other type of site related to the
maritime history of Australia. This places a somewhat antiquarian approach to
shipwreck sites, focussing on the material remains, potentially isolating them
from their context, and the past and contemporary communities.

134 Maritime Archaeology: Australian Approaches
In only a few cases, such as the Xantho project (McCarthy, 2000) have
shipwrecks and shipwreck material been used to explore and reveal their social
values to Australians (also see Staniforth,
2003;
Stanbury, 2003). This is a very
important, yet almost forgotten aspect that needs to be addressed. Although the
legislation, like archaeology more generally, focusses on material remains, it
needs to keep in mind that we are protecting and pursuing this activity for the
benefit of the community. The intent is to inform them about past and present
human behaviour, which should incorporate the range of factors that have
contributed and not just be limited to that found on shipwrecks.
The Federal government in this endeavour is currently contemplating a
National Maritime Heritage Strategy that will incorporate a review of the
legislation in context with a program that considers Australia's maritime history
and the associated sites. It is also being considered in context with the UNESCO
Convention on the Protection of the Underwater Cultural Heritage, which has a
slightly different focus, given its key requirement that sites must be located
underwater. Many important maritime sites that could contribute to a maritime
heritage program (such as light stations and intact vessels) are not found
underwater. Although it might be possible to formulate one government
program for such a wide remit, it would seem unnecessary to bring all these
activities and sites under the one piece of legislation.
It would seem desirable that a review of the Historic Shipwrecks Act and
the associated program encompassing these different foci should result in a
cooperative effort involving a number of agencies and groups responsible for
different pieces of legislation and involving people with different
responsibilities, skills and experiences. In summary, one clearly defined
program is needed involving a number of pieces of legislation and the various
agencies/institutions/personnel with the appropriate skills required to implement
it. This approach is not new, it is used in a number of cases, such as in planning
and assessing developments, where one leading piece of legislation triggers and
coordinates the input of other Acts and the accompanying resources. Changes to
the legislation and the Historic Shipwrecks Program should aim to achieve the
following:
> Formulate objectives, strategies and activities for a program based
around the need to "manage" maritime archaeology/maritime
heritage/submerged cultural heritage sites and values;
> Redefine the aim, and review the Historic Shipwrecks Act 1976 in the
light of the objectives of the new program and the other Acts/Programs
to be involved;
> Formalize in the legislation an adequate fund to implement the program;
> Provide for Community/Expert advise through formalizing an Advisory
Committee in the legislation;
> Establish and formalize a network with other agencies/institutions/personnel
to assist in implementing the program;
> Incorporate criteria for protecting sites in the legislation;
> Incorporate Rules similar to those contained in the UNESCO
Convention in the "new" legislation; and

Historic Sliipwreclis Legislation 135
> Develop and fund adequate training programs required to implement tlie
program.
These factors would revitalize the interest in, and effectiveness of
managing these types of cultural heritage sites as it would provide the program
with a holistic approach and appeal to more of the Australian community. It
would also provide a way for the required resources to be shared. This is what
Senator Withers had in mind when he spoke in the Australian Parliament in
1976,
and although there has been an injection of resources into the program
from the States and Federal governments, more is needed, and with a more
diverse, less bureaucratic approach.