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Republic? More Power For Politicians (p7 of 11)


The principle of British colonisation was that the law of England existing at the time of settlement applied to the new colony but the date of settlement would be a "cut-off' date after which new English laws would not apply to the colony unless the words of the new law expressly (or by necessary implication) made the law applicable to the colony. For Australia, however, this ordinary principle was varied and 25th July 1828 was established as the "cut-off' date for New South Wales (including what subsequently came to he known as Victoria and Queensland) and Van Diemen's Land (now known as Tasmania). For South Australia (including Northern Territory) and Western Australia the "cut-off' dates are the respective dates of settlement. It is readily understood, therefore, that a degree of independence for the Australian colonies existed from 1828. This independence is universally agreed in relation to statute law and, despite a judicial comment by the fate Justice Lionel Murphy in (Dugan v. Mirror Newspapers (1978) 142 CLR 583 at p. 609), the principle that English laws would not apply to a colony after the "cut-off' date also includes the inapplicability of common law declared in English courts. From the "cut-off' date the colonies made their own laws and their own courts established their own judicial precedents. The British parliament retained the power to pass statutes applying expressly (or by necessary implication) to the Australian colonies but the English courts could no longer establish precedents binding on the Australian courts. Appeal lay from the Australian courts to the Judicial Committee of the Privy Council but, when dealing with appeals from Australia, the Privy Council sat as an Australian court, not as an English court, and applied Australian law (not English law).

(The terms 'English' and 'British' are not being used indiscriminately in this context but are expressing different concepts. The term 'British' applies, for example, to the parliament at Westminster with legislative responsibility for Great Britain, whereas there were (and still are) distinct systems of courts for Scotland on the one hand and England and Wales on the other, each administering its own distinct laws. It was English (not Scots) law that came with the colonists to Australia.)

With the establishment of a constitution for each of the Australian colonies, the parliaments of each colony passed their own statutes without reference to Britain. The colonies appointed their own judges and their own public servants and raised their own armies. It was by independent local decision that colonial troops were sent from Australian colonies to the Boer War.

In 1901, with the formation of the federal Commonwealth of Australia and the establishment of the Commonwealth of Australia Constitution, a degree of (perhaps complete, if the late Justice Murphy is correct) independence as a matter of law devolved on the newly formed Federation.

Although complete independence from Britain might have existed as a matter of law since 1st January 1901, this was not widely perceived either in Britain or in Australia. The perception dawned slowly over the years.

On the outbreak of World War I, although it was generally thought that Britain's involvement automatically included Australia, it was exclusively the independent decisions of the Australian Federal Parliament that established the 1st A.I.F., recruited and conscripted the troops, and sent them to the war. It was recognised at the Imperial War Conference held in 1917 that Australia was an independent participant in the war.

The participation of Australia in hostilities as an entity independent of Britain was confirmed at the signing of the Versailles Peace Treaty on 28 June 1919 when Prime Minister William Morris Hughes signed on behalf of the Commonwealth of Australia as an independent nation. On returning to Australia Hughes informed the Commonwealth Parliament (10 September 1919) that Australia had entered the family of nations on a footing of equality.

On 20 January 1920 the League of Nations came into existence with Australia as one of the 28 independent founding member nations. Article 1 of the Charter of the League of Nations demonstrably recognises Australia's complete independence. Following this demonstration, a concept of Australian citizenship (distinct from citizenship of Great Britain) was formally established. The League of Nations Charter has been referred to as "Australia's declaration of independence".

On 11 November 1921 Australia appointed its first diplomatic representative to Britain. His credentials were accepted as the representative of an independent nation.

The Washington Naval Treaty was signed by Australia in 1922. It is sometimes incorrectly said that this was the first international treaty in which Australia participated independently of Britain (in fact, it seems likely the first such treaties related to postal matters prior to federation, entered into by the colonies or some of them) but it is true that the Washington Naval Treaty was the first defence pact established by Australia independently of Britain.

The "Balfour Declaration" of 1926 (perhaps most often cited in relation to Palestine) acknowledged Australia's equal status with Britain. "Imperial Conferences" were held in 1926 and 1930. At the 1926 Conference it was recognised and agreed that the Governor-General (not the Queen) represents Australia overseas. It was recognised that the Queen not only does not but cannot represent Australia. These conferences also declared the complete legislative independence of Australia (and the other self-governing dominions). This independence and certain of the decisions of the Imperial Conferences were given statutory recognition by the Statute of Westminster, 1931. This raised, at last, a general perception that Australia was indeed a truly independent nation.

Despite that general perception, there were continuing expressions of doubt. Doubters claimed that if it were true to say the British Parliament had no legislative authority for Australia, the Statute of Westminster itself had no legal effect. This doubt was set at rest in 1942 with the passing by the Commonwealth of Australia Parliament of the Statute of Westminster Adoption Act, 1942 adopting the Statute of Westminster as Australian law.

In 1945 Australia signed the Charter of the United Nations as a foundation member and as a completely independent nation. Australia's complete independence was again publicly declared by Britain and recognised by the nations of the world.

In 1948 new Citizenship Acts in Britain and Australia further clarified the distinction between Australian Citizens on the one hand and Citizens of the United Kingdom and Colonies on the other hand. The distinction was completed in 1983 and 1984 when Britain and Australia respectively legislated with the effect of Australian citizens becoming aliens in Britain and citizens of Britain becoming aliens in Australia. (This paragraph in the earlier editions of this booklet was widely criticised an being incorrect. However, on 23 June 1999, in giving judgment in relation to Heather Hill, the High Court of Australia expressed the same understanding (Sue v Hill [1999] HCA 30)).

Although the Privy Council sat as an Australian Court when hearing appeals from Australia, it was increasingly felt that a right of appeal to a court constituted outside Australia with judges not appointed by an Australian government was not appropriate for an independent nation. The possibility of an appeal from an Australian court to the Privy Council was finally terminated in 1986.

Despite the Statute of Westminster Adoption Act 1942, the revised citizenship arrangements and recognition by the United Nations and the nations of the world, there was still (or perhaps 'again' rather than 'still') some feeling that further steps were needed to establish Australia's independence. To deal with this continuing feeling, the Australia Act, 1986 was enacted by the Federal Parliament, every State Parliament and the British Parliament. Prime Minister R. J. Hawke declared that with the enactment of the Australia Act the Constitution was "brought home" and independence was complete at last.

This was not enough for the Prime Minister. He had set up in 1985 a Constitutional Commission consisting of three of Australia's leading constitutional experts and asked it to report on the revision of the Constitution required to "adequately reflect Australia's status as an independent nation". The Commission reported in 1988, after tracing the history of constitutional and legislative development outlined above, that "it is clear from these events, and recognition by the world community, that at some time between 1926 and the end of World War II (in 1945) Australia bad achieved full independence as a sovereign state of the world."

Written and authorised by Dr David Mitchell,
18 Proctors Rd. Dynnyrne, Tasmania 7005

Due acknowledgement should be given when quoting from material on this Site


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Resource: Printed: 2022-06-26
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