Unit rationale, description and aim
The “free sea” concept is crucial to understanding global trade, empires and sovereignty – all forces that shape the foundations and rules of law. Free trade affected mercantilism, an economic driver of colonialism. The unit offers a focus on the Pacific and Oceania, where ocean voyaging was first observed with Indigenous peoples then, with Western explorers (1500-1800 AD). The British Empire, and their use of endurance ships, chronometers and longitude almanacs, dramatically changed sea routes and ocean mobilities, including colonial indentured labour. Today over 90 percent of the world trade traverse oceans.
The principle of freedom to travel and trade has influenced many legal concepts, from liberties through native title to international law. Students will explore the evolution of legal norms such as constituted authority, territorial acquisition, and Law of the Sea jurisdiction. These elements are essential for analysing ongoing legal challenges to freedoms of navigation, movement and fishing in marine treaties. Notions such as territoriality, high tide and low water marks, sea boundaries and foraging rights in the sea and adjoining lands are all significant matters successfully contested in Indigenous litigation. The unit aims to provide students with broad knowledge and transferable skills by evaluating Indigenous peoples’ coastal areas claim making.
Campus offering
No unit offerings are currently available for this unit.Learning outcomes
To successfully complete this unit you will be able to demonstrate you have achieved the learning outcomes (LO) detailed in the below table.
Each outcome is informed by a number of graduate capabilities (GC) to ensure your work in this, and every unit, is part of a larger goal of graduating from ACU with the attributes of insight, empathy, imagination and impact.
Explore the graduate capabilities.
Analyse the historical development of maritime law...
Learning Outcome 01
Analyse the impacts of maritime law, mercantilism,...
Learning Outcome 02
Critically evaluate competing political ideas in o...
Learning Outcome 03
Evaluate Indigenous claim-making in Western Oceani...
Learning Outcome 04
Content
Topics will include:
- Free seas: Multidirectional routes and knowledge
- Modern maritime empires: Stock companies, piracy, plunder and possession
- The legacy of the English Cinque Ports Courts: authority and natural rights
- British maritime powers and ports: A new imperial and racial order
- Mercantilism and materiality: reorganisation of space, time and economies
- Law of the Sea dynamics: freedoms versus Indian and Western Pacific indentured labour
- Jurisdictional conflicts in the Pacific: Anti-colonial networks and Indigeneity
- Torres Strait autochthony: land and climate litigation
- Jurisdiction, maritime treaties and the High Seas Treaty: beyond Economic Zones
- Arnhem Land claims: just terms and rights in the sea and adjoining lands.
Assessment strategy and rationale
To pass this unit, students must achieve an overall minimum grade of pass (50%). Rubrics and feedback will be utilised to describe the standard of work expected.
Students will be expected to demonstrate learning outcomes through scaffolded oral and written activities. To assure assessment in the age of generative artificial intelligence, demonstrating learning outcomes will be integrated with supervised in-class interactive exercises, oral assessment and Cadmus for written assignments.
Task 1. In a brief verbal in-class presentation, students will articulate their ideas about maritime law in relation to salvage rights, piracy, imperialism and colonisation. This will enable achievement of LO1.
Task 2. In an in-class interactive exercise, students will locate a court case to illustrate its relevance to maritime law, mercantilism, colonised peoples and consequent socio-legal transformations. Subsequently, students will write a case study contextualising their research with analysis and citations. This will enable achievement of LO2.
Task 3. In a research essay, students will examine competing ideas in oceans law discussed in class, clarifying debates on “free seas” in relation to possession, dispossession, rights and sustenance. The purpose is to evaluate Indigenous claim-making in Western Oceania and just terms for Indigenous Australians. This will enable achievement of all learning outcomes.
Overview of assessments
1. Seminar Presentat...
1. Seminar Presentation
Students are expected to participate in tutorials, whether in-person or online, recognising that pre-reading materials and preparation for tutorials contribute to quality group engagement and their own learning.
Assessment Method: Presentation - in-person or online (5 minutes, equivalent 800 words).
Students will present verbally to explain a key concept in maritime law in various contexts such as colonialism, mercantilism and international law and, how it relates to Indigenous peoples.
20%
2. Reflective Case S...
2. Reflective Case Study
In an in-class interactive exercise, students will locate a legal decision, to discuss how the case exposes and deals with Indigenous peoples claim-making in respect of the evolution of maritime and international law on coastal lands.
Assessment Method: Reflective Report on a Court Case. (1000 to 1500 words)
In their subsequent written assignment, students will identify issues, undertake legal research, analyse the context and different values utilising a range of sources, and communicate their reflections.
The purpose is to develop personal reflective skills about an aspect of ocean mobilities, freedoms of navigation, movement and fishing, and ongoing legal challenges for colonised peoples.
The purpose is to develop skills in critical reading and analysis across a range of sources (texts, sound, visual arts, audio-visual) and clear communication.
30%
3. Research Essay Students will evaluate a...
3. Research Essay
Students will evaluate a claim for historical rights and just-terms by Indigenous peoples in response to threats to coastal lands, economies, industries, communities and knowledge and, to seas and ecosystems
Assessment Method: Research Essay (1500-2000 words).
The purpose is for students to develop skills that persuade readers of an idea based on evidence, to propose solutions and consider implications arising from the tension between Indigenous self-determination and global governance.
Students will be expected to analyse a question, locate and reference research, organise their ideas, construct drafts, seek feedback, edit and, finalise citations in support of their argument.
50%
Learning and teaching strategy and rationale
This unit will be taught through lectures, tutorials, original sources, library research, use of audio and visual materials to hear Indigenous voices, presentations and scholarly debate as part of inquiry-based learning. Students will progress from inquiry (asking questions and gathering information) to analysis (breaking down information, identifying patterns, and evaluating evidence) to applied reflection in practical contexts. Their progress will be supported by scaffolding assessments, a structured path to develop their knowledge skills as they progress through the unit to develop their own conclusions. Accessibility and flexibility in learning will be supported through different modes of delivery.
Lectures with audio and visual materials will provide support and structure for student research and investigation. Tutorials will start with proposing a research question, supported by in-class peer reflections. Students will formulate questions about the topic based on their research. Students will be encouraged to work independently and in small groups to evaluate credibility of the sources and evidence. Educators will facilitate students as a group to reflect and apply their knowledge skills with a focus on “real world” cases. Students will be asked to critically reflect on their research findings addressing socio-economic inequality and rights of Indigenous peoples in an international context.
Representative texts and references
Legal Particulars
Specialist printed materials will be made available free prior to the teaching period including:
Commonwealth Legislation
Admiralty Act 1988 (Cth)
Immigration Restriction Act 1901 (Cth)
Pacific Island Labourers Act 1901 (Cth)
Protection of the Sea (Civil Liability) Act 1981 (Cth)
- Commonwealth Offshore Settlement Acts
Sea and Submerged Lands Act 1973(Cth)
Coastal Waters (State Powers) Act 1980 (Cth)
Coastal Waters (State Title) Act 1980 (Cth)
Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
Coastal Waters (Northern Territory Title) Act 1980 (Cth)
Comparative legal particulars
Bill of Rights 1688 (UK)
Magna Carta 1215
Marine and Coastal Area (Takutai Moana) Act 2011 (NZ)
[recognizing non-exclusive Maori customary rights in the marine and coastal area}
Cases - Australia
Akiba v Commonwealth [2013] HCA 33 (the “Torres Straits Sea Claim”)
Blue Mud Bay native title case, [2007] FCAFC 23.
Croker Island case (2001) 184 ALR 113; [2001] HCA 56. Commonwealth of Australia v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56
Daniel Billy et al. v Australia – UN HRC 2022 (Torres Strait Islanders Petition) - Climate Change Litigation CCPRC135D36242019
Griffiths v Northern Territory of Australia (No 3) (2016) 337 ALR 362, [294].
Mabo v Queensland (No 1), HCA 69, (1988) 166 CLR 186
Mabo v Queensland (No. 2) [1992] HCA 23 - 175 CLR 1; 66 ALJR 408
Pabai and Kabai v Cth (FCA, Filed 2021)
Seas and Submerged Lands Case, New South Wales v Commonwealth, Decision, [1975] HCA 58, (1975) 135 CLR 337
Teori Tau v Commonwealth (1969) 119 CLR 564
Wellesley Islands case. [2004] FCA 298
Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993
Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia (2023) 298 FCR 160 (' Commonwealth of Australia v Yunupingu [2025] HCA 6 (Judgment summary)
Conventions, Treaties and Settlements
Australia, Offshore Constitutional Settlement 1979 at https://www.ag.gov.au/international-relations/publications/offshore-constitutional-settlement-milestone-cooperative-federalism
Nordic Saami Convention (Nordisk Samekonvensjon), October 2005 [online]
The Torres Strait Treaty was signed in December 1978 and entered into force in February 1985. It defines the border between Australia and Papua New Guinea and provides a framework for the management of the common border area including free movement for traditional activities as part of the Torres Strait Protected Zone (TSPZ). https://www.dfat.gov.au/geo/torres-strait/the-torres-strait-treaty. Full text https://www.austlii.edu.au/au/other/dfat/treaties/1985/4.html
Traditional Use of Marine Resources Agreements. TUMRAs manage Indigenous traditional hunting, fishing, and other activities within specific areas of the Great Barrier Reef Marine Park.
United Nations Convention on the Law of the Sea (UNCLOS) 1982 Overview at https://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm
UN High Seas Treaty, Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, 2023
Representative Texts and References
Aulakh, Preet S. “Law, Identity and Imperial Logics of Exclusion: The Case of the Komagata Maru Passengers.” The Journal of Imperial and Commonwealth History 49 (5) (2021): 866–98. doi:10.1080/03086534.2020.1848029.
Australian Human Rights Commission, “Native title and sea rights”. In Native Title Report, 2000: Chapter 3. https://humanrights.gov.au/our-work/projects/native-title-report-2000-chapter-3-native-title-and-sea-rights
Barth, Jonathan. “Silver, Mercantilism, and the Impulse for Colonization”. In The Currency of Empire: Money and Power in Seventeenth-Century English America. Cornell University Press, 2021.
Brenton, Lauren. A Search for Sovereignty: Law and Geography in European Empires 1400 – 1900. Cambridge University Press, 2009.
Brenton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400-1900. Cambridge University Press, 2002.
Brenton, Lauren and Lisa Ford. Rage for Order: the British Empire and the Origins of International Law, 1800-1850. Harvard University Press, 2016.
Burrows, John. Recovering Canada: The Resurgence of Indigenous Law. University of Toronto Press, 2002.
Dalrymple, William. The Anarchy: The East India Company, Corporate Violence, and the Pillage of an Empire. Bloomsbury Publishing, 2019.
Denoon, Donald (ed). The Cambridge history of the Pacific Islanders. Cambridge University Press, 2004.
Dillon, Rodney. “Aboriginal Peoples And Oceans Policy In Australia - An Indigenous Perspective”, The Journal of Indigenous Policy, Issue 3.
Douglas, Bronwen. “Terra Australis to Oceania: Racial Geography in the “Fifth Part of the World”’, Journal of Pacific History 45, no. 2 (2010): 179–210.
Erikson, Emily, Between Monopoly and Free Trade: The English East India Company. Princeton University Press.
Gammage, Bill. The Biggest Estate on Earth: How Aborigines made Australia. Allen & Unwin, 2012.
Goebel Michael. “The National and the Colonial in the Anticolonial Transnational”. In Manela Erez and Heather Streets-Salter (eds). The Anticolonial Transnational: Imaginaries, Mobilities, and Networks in the Struggle against Empire. Cambridge University Press; 2023:292-306.
Goodall, Heather, Devleena Gosh and Lindi R. Todd. “Jumping Ship – Skirting Empire: Indians, Aborigines and Australians across the Indian Ocean”. Transforming Cultures 3, No 1 (2008), 44-74.
Grotius, Hugo. The Free Sea. (Mare Liberum, 1609), translated by Richard Hakluyt. Indianapolis: Liberty Fund, 2004.
Hall, Catherine, Nicholas Draper and Keith McClelland (eds). Emancipation and the Remaking of the British Imperial World. Manchester University Press, 2014..
Howse, David. Greenwich Time and the Discovery of Longitude. Oxford University Press, 1980.
Howe, K. R. (ed). Vaka Moana, Voyages of the ancestors: The Discovery and Settlement of the Pacific. 2007.
Hu, J. “The Cinque Ports and Great Yarmouth in dispute in 1316: Maritime violence, royal mediation and political language”. International Journal of Maritime History, 32(3) 2020), 666-680. https://doi.org/10.1177/0843871420944650
Hueffer, Ford Madox. The Cinque Ports: A Historical and Descriptive Record. London: William Blackwood and Sons, 1900. Appendices: Writs of Summons, Writ of 22nd Edward I, The Great Charter of The Ports . [Online].
Hull, F. “The archival history of the Cinque Ports”. Journal of the Society of Archivists, 3(1), (1965). 15–19. https://doi.org/10.1080/00379816509513805
Kiernan, V. G. (Victor Gordon), The Lords of Human Kind: European attitudes towards the outside world in the Imperial Age. London: 1969.
Jaffer, Aaron. Lascars and Indian Ocean Seafaring, 1780-1860: Shiphoard Life, Unrest and Mutiny. Boydell Press UK, 2015.
Koivurova, Timo. The Draft Nordic Saami Convention: Nations Working Together. International Community Law Review 10 (2008) 279–293.
Lavery, Daniel. "Native Title as Property: Yunupingu v Commonwealth" James Cook University Law Review 8, 29 (2023) 125.
Lewis, David. We, the Navigators: The Ancient Art of Landfinding in the Pacific (1994).
Mansfield, Bill. “Law of the Sea”, Te Ara. The Encylopedia of New Zealand. https://teara.govt.nz/en/law-of-the-sea/print [Overview of NZ and Pacific sea laws]
Mar, Tracey Banivanua. Decolonisation and the Pacific: Indigenous Globalisation and the Ends of Empire. Cambridge University Press, 2016
Matsuda, Matt K. Pacific Worlds: A History of Seas, Peoples, and Cultures (2012)
Mawani, Renisa. Across Oceans of Law: The Komagata Maru and Jurisdiction in the time of Empire (Duke University Press, 2019) [online]
Mawani, Renisa. “Specters of Indigeneity in British-Indian Migration, 1914.” Law & Society Review 46, no. 2 (2012): 369–403. http://www.jstor.org/stable/23252280.
Moran and Russell (eds). Maritime Strategy and Global Order: Markets, Resources, Security (2016) [a history].
Rothwell, Donald and Tim Stephens, The International Law of the Sea. Hart/Bloomsbury: 1st 2010; 2nd 2016).
Rothwell, Donald, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens (eds). Oxford Handbook of the Law of the Sea. Oxford University Press: 2015.
Russell, Lynette. Roving Mariners: Australian aboriginal whalers and sealers in the southern oceans, 1790-1870 (2012).
Sargeant, Jack David. “Fishing, Freedom, and the Market in Early Modern London”, History Workshop Journal, 97, Spring 2024, 77–101, https://doi.org/10.1093/hwj/dbae004
Sharman, J.C. Power and Profit at Sea: The Rise of the West in the Making of the International System. International Security 2019; 43 (4): 163–196. doi: https://doi.org/10.1162/isec_a_00346
Shineberg, Dorothy. They Came for Sandalwood: A Study of the Sandalwood Trade in the Southwest Pacific, 1830–1865. Melbourne: 1967.
Smith, C. & Dodson, M. Report on indigenous fishing rights in the seas with case studies from Australia and Norway. Presented at the Permanent Forum on Indigenous Issues, Ninth session, New York, 19-30 April 2010. United Nations Permanent Forum on Indigenous Issues: 2010. http://hdl.handle.net/1885/10124
Smith, Diane. “Valuing native title: Aboriginal, statutory and policy discourses about compensation”. Discussion Paper, Centre for Aboriginal Economic Policy Research, The Australian National University, No. 222, 2001.
Spate, O. H. K. The Pacific since Magellan. Vol. 3, Paradise Found and Lost. Minneapolis: University of Minnesota Press, 1988 (ANU epress available).
Stapelbroek, K., & Tazzara, C. The Global History of the Free Port. Global Intellectual History, 8 (6) (2023), 661–699. https://doi.org/10.1080/23801883.2023.2280091
Steinberg, Philip. “Free Sea”. In Spatiality, Sovereignty and Carl Schmidt. Edited by Stephen Legg. Routledge, 2011.
Steinberg, Philip. “Of Other Seas: Metaphors and Materialities in Maritime Regions”. Atlantic Studies: Global Currents 10, no 2 (2013): 156-69
Steinberg, Philip. The Social Construction of the Ocean. Cambridge University Press, 2001.
Steinberg, Philip. “Sovereignty, Territorality and the Mapping of Mobility: A View from the Outside. Annals of the Association of American Geographers 99, no. 3 (2009): 467-95.
Strootman, van den Eijnde and van Wijk, Empires of the Sea: Maritime Power Networks in World History (2019).
Winnett, Celia. “Just Terms’ or Just Money? Section 51(Xxxi), Native Title and Non-Monetary Terms of Acquisition”, UNSW Law Journal Volume 33, 3 (2010): 776-807.
Audio and Visual materials
Boyd, Daniel. We Call them Pirates Out Here, 2006. Oil on canvas.
Chen, Skylar and Rayne Sullivan (dirs). Palau, An Ocean Inheritance, 2024, short film, 20 mins.
Christensen, Mark, The Columbian Exchange, 2024, illustration. The Columbian exchange of crop plants, livestock, and diseases in both directions between the Old World and the New World. https://billofrightsinstitute.org/essays/columbian-exchange
The Devilfish in Egyptian Waters. An American cartoon from 1882 depicting John Bull (England) as the octopus of imperialism grabbing land on every continent.
Graham, Trevor. Mabo: Life of an Island Man, 1997, documentary film, 87 mins.
Kowanyama, Sea level rise in Kowanyama, Cape York, Australia, UNU-IAS, documentary film, 6 mins, https://vimeo.com/1109183962
Lycett, Joseph. Aboriginal Australians spearing fish and diving for shellfish, New South Wales, ca. 1817, watercolour in album.
Mellor, Danie. Culture Warriors 2008, drawing in black pencil, pastel, watercolour wash with collage of glitter, Swarovski crystals on Saunders Waterford paper [Kangaroos against Spode-style landscape], NGA, https://searchthecollection.nga.gov.au/object/188006
The Project. EXPLAINED: High Court Ruling in Favour Of Indigenous Land Rights, Video, 7:45. https://www.youtube.com/watch?v=wHrWXkfYbVo
Eric Ross, Mapping the Mercantilist World Economy, 2015, online maps.
Jan Van Ryne (1712 - 1760), Fort William in The Kingdom Of Bengal. Belonging to the East India Company of England, 1754, hand-coloured copper engraving on paper, https://www.storyltd.com/auction/item.aspx?eid=4770&lotno=29.
Tupaia. A Māori [Tupaia, a navigator]and Pākehā man [Joseph Banks] trading a crayfish [for a piece of cloth], coloured drawing 1769. British Library, London. http://prologue.mattcouper.com/tupaia.html.
West, Benjamin (1738-1820). The Mughal emperor Shah Alam hands a scroll to Robert Clive, Governor of Bengal [which transferred tax collecting rights in Bengal, Bahar and Orissa to the East India Company as the Treaty of Allahabad], 1765, oil on canvas, British Library.
Woodville, Richard Caton Jr. Hutchinson's Story of the British Nation, c.1923 (litho) Bridgeman Art Library: Object 373554. Gunnery drawn by oxen and elephants at the Battle of Plassey, 23rd June 1757; Decisive British East India Company victory over the Nawab of Bengal and his French allies, establishing Company rule in India.