Did adoption of the Statute of Westminster make Australia truly independent?
The Australia incident in 1942 provides an important reminder that good intentions are not sufficient to prevent severe unintended consequences arising from sovereign powers effectively held by Great Britain over Australia.
The Statute of Westminster Adoption Act in 1942 was necessary, but not sufficient to grant full Australian independence from Great Britain and British control remains embedded in the Australian Constitution. The reality is that the Statute of Westminster Adoption Act 1942 was more important for its symbolic value than the legal effect of its provisions.
Australian independence from Great Britain had been slowly accepted in London, but the adoption of the Statute formally demonstrated Australia’s independence to the rest of the world. Importantly, it symbolised the strategic shift from the fading colonial Empire of Great Britain to the emerging global superpower, the United States, which was to dominate the postwar era.
The Statute of Westminster Adoption Act provided that no future British Act would apply to Australia as part of its law, unless the Act expressly declared that Australia had requested and consented to it. However, Section 4 of the Statute only affected British laws that applied to Australia, not British laws that applied to any Australian state. As such, British parliament retained the power to legislate for the states.
In practice, the British parliament has never used this power. In 1933, after a succession referendum in Western Australia, a delegation went to London to request that British parliament recognise WA as a separate Dominion. The British government declined to intervene.
Colonial attachment to the Empire and monarchy remained strong after the Second World War despite changes in Commonwealth membership and the strategic shift in the Australian defence alliance with the United States. In 1953, a Commonwealth Prime Minister’s Conference agreed that Dominions could create particular titles for the Queen in her capacity as Head of State of the country concerned.
Prime Minister Robert Menzies proposed legislative changes under the Royal Style and Titles Bill 1953 to include the Queen’s title for the first time in Australian legislation. The new title was: ‘Elizabeth the Second, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith.’1
The parliamentary debates over the change in status in 1953 reflect much of the conservative attachment to Great Britain, the Empire and the monarchy that was highlighted in the Statute of Westminster Adoption Bill debates in 1942.
Robert Menzies, who still saw himself as a British citizen, told Parliament:
‘I hope that whatever changes may come…in the future…people will still be able to stand…and feel…the Crown is the defender of our faith; (people will) still feel that of all our nations, and ourselves in particular, he, or she, is the enduring monarch, the monarch who dies as an individual, but who passes on a crown that will always be the sign and proof that, whatever we may be in the world, we are one people.’2
Then Opposition Leader, Bert Evatt, remarkably endorsed the prime minister’s remarks and expressed regret that the word ‘British’ had been dropped from the Commonwealth of Nations because India had joined the Commonwealth as a republic:
“In this country, no such difficulty could ever arise because the word ‘British’ means as much to us as it does to the people of the United Kingdom itself and of New Zealand and Canada. To all of us, it means the British tradition of Government under which every member of this Parliament pledges his faith and allegiances to the monarch, not as a symbol but as a person.”3
The postwar allegiance to the monarchy and Empire remained strong despite the shift to the US alliance. Royal visits by Queen Elizabeth II in 1954, with the Queen Mother in 1958 and again in 1963, reinforced popular support for the monarchy. Queen Elizabeth II made another nine visits to Australia in the 1970s and 1980s, including one in 1986 to sign the Australia Act.
It was not until 44 years later that the Hawke Labor government passed the Australia Act. It ended all powers of British parliament to legislate with effect in Australia and the states, and ended all remaining methods of legal appeal over High Court decisions to the Privy Council in London.
After the Australia Act 1986, state laws would no longer be subject to disallowance or suspension by the Queen. Ironically, this power is retained for Commonwealth legislation in Sections 59 and 60 of the Commonwealth Constitution. Like the Commonwealth Constitution, the Australia Act 1986 was passed as separate pieces of legislation simultaneously in Canberra and London on 3 March 1986. The two Acts are identical except for the preamble which refers to Australia as ‘a sovereign, independent and federal nation’.
This view has been tested in the High Court. In Sue v Hill (1999), the High Court held that Great Britain was a foreign power and that someone who only held British nationality could not stand for federal parliament.4 The High Court took a broad view of the preamble in Shaw (2003), when the whole Bench held that the Australia Act amounted to a ‘declaration of independence’ from Great Britain.5
However, the preamble to the Australian Constitution, which remained unaltered by the Statute of Westminster Adoption Act, and the Australia Act, states that:
Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.
Section 2 of the Constitution also states: ‘The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’
While Section 59 of the Constitution still allows the Queen to disallow Australian legislation within 12 months of it passing federal parliament, the provision has been obsolete since the 1930s. That power now resides with the Governor General.
As the Queen’s representative in Australia, the Governor General may summon and dissolve Parliament, issue writs for a general election, dissolve both Houses of Parliament simultaneously, and grant or withhold Royal Assent to legislation.
The Governor General may also reserve bills for the Queen to consider whether to grant Royal Assent, exercise the executive power of the Commonwealth, appoint Ministers of State and act as Commander-in-Chief of the armed forces. The Constitution states that the Governor General shall act in accordance with the advice of the Executive Council of Ministers elected to form the federal government.
This convention continues to apply, and was tested in 1975 when Governor General, Sir John Kerr, called on the Leader of the Opposition Liberal Party, Malcolm Fraser, to lead the government after the Opposition rejected the budget bills of the Labor government led by Gough Whitlam.
Importantly, the Queen refused to intervene in the 1975 crisis, leaving all matters to the Governor General and the Executive Council of elected ministers. The Constitutional crisis was resolved by a double dissolution. This saw the Whitlam Labor government defeated and the Fraser-led coalition of Liberal and National Parties elected to government.
Military law in Australia also remained an ‘admixture’ of British and Australian law that provided ‘ample scope for errors to occur’ well into the 1980s. In his second reading speech on the Defence Forces Discipline Bill in 1982, Defence Minister Jim Killen advised federal parliament that military lawyers faced enormous difficulties in administering a mixed system of British and Australian military law, describing the situation as a ‘Serbian bog of archaisms’. Killen said:
“It is fair to say that any person who is not familiar, through practice, with the operation of these laws, who tries to find a way through the labyrinth of statutes, regulations and extensively modified United Kingdom legislation, faces a daunting task indeed … The admixture of United Kingdom and Australian law provides ample scope for errors to occur. This is not a fantasy. There has, in fact, been one naval conviction quashed because the Judge Advocate advised the court martial on the basis of an English decision which had not been followed in Australia by the High Court.”6
It was not until 1985, that the Australian Defence Force finally divested itself of Imperial legislation, which included archaic offences such as ‘dueling’ and ‘beating drums negligently occasioning false alarms on the march’. However, the ‘admixture’ of Australian and British legislation and ongoing vice-regal power continues to constrain Australian independence.
Endnotes
- Royal Styles and Title Bill, 1953.
- Second Reading Debate, Robert Menzies, Commonwealth Parliamentary Debates, 18 February 1953, p. 57.
- Second Reading Debate, Dr Herbert Evatt, Commonwealth Parliamentary Debates, 18 February 1953, p. 58.
- Sue v Hill (1999) 199 CLR 462.
- Shaw v Minister for Immigration and Multicultural Affairs (2003) 219 CLR 28.
- Second Reading Debate, James Killen, Defence Force Discipline Bill, Commonwealth Parliamentary Debates, 29 April 1982, p. 2.