Case: The 'Halcyon Isle' [1981] AC 221
Outcome: referred to
For the reasons that I have identified, it is unnecessary to decide either of these questions. Given the restrictive approach to maritime liens in Anglo-Australian law, there are significant obstacles in the way of the first question, being an argument that a new class of maritime lien should be recognised: see for example, The 'Acrux' , The 'Halcyon Isle' [1981] AC 221; and Fournier v The Ship 'Margaret Z' [1999] 3 NZLR 111 [22]-[23]. 131 The second question raises an important issue about the approach to s 15, and it is appropriate to say something about this. As a matter of construction of s 15 a number of considerations are relevant. First, the approach enunciated by Dixon J in Parisienne Basket and discussed in The Queen v Gray; Ex parte Marsh and The 'Tieng Sheng (No 8)' to which I have already referred must be borne in mind. Secondly, the word "includes" in s 15(2) reflects the fact that the Act leaves open the possibility of other maritime liens being recognised beyond those listed. This might occur by reference to the development of Australian maritime law in this respect, or by the recognition of foreign maritime liens by reference to principles of private international law different to those expressed by the majority of the Privy Council in The 'Halcyon Isle' ; and see Price, G The Law of Maritime Liens (Sweet &amp; Maxwell 1940) at Ch 20. The defendant submitted (as is the case) that s 6 of the Act provides that the Act does not have the effect of creating a new maritime lien, and that this assists the conclusion that the court should not extend the categories of maritime liens. That, however, was an approach to the formulation of the whole Act on the basis of the perceived limitation of the legislative power of the Commonwealth found in Owners of SS Kalibia v Wilson [1910] HCA 77 ; (1910) 11 CLR 689 to the effect that the Commonwealth Parliament does not have implied power to legislate for Admiralty and maritime substantive law. It is unnecessary and inappropriate to discuss whether The 'Kalibia' reflects the current Constitutional position given the emergence of Australia as a fully independent nation state: cf The 'Shin Kobe Maru' (FC) at 86-7; The 'Genessee Chief' 53 US 263 (1851); The 'Lottawanna' ; Butler v Boston and Savannah Steamship Co 130 US 527 (1889); In re Garnett 141 US 1 (1891); Southern Pacific Co v Jensen 244 US 205 (1917); Panama Railroad Co v Johnson 264 US 375 (1924); and Harrison Moore The Constitution of Australia at 562. It is sufficient to say that s 76(iii) provides for Parliament to confer or invest Admiralty and maritime jurisdiction. The absence (according to The 'Kalibia' ) of a coterminous legislative power to deal with substantive law matching the reach of judicial authority over Admiralty and maritime controversies does not limit the full import and implication of the grant of judicial power. The conferral of jurisdiction is not a matter of mere procedure. It is the conferral of a species of governmental power to quell controversies. Subject to limited circumstances that may exist by way of exception, courts have a duty to exercise the power if jurisdiction is invoked. Thus, judges have a responsibility to ascertain and declare the general maritime law of Australia, as part of the common law of Australia. If that includes ascertaining and declaring the law of maritime liens, that is part of the task.