It is an assumption that is widely acknowledged within
Australia that the Country of Australia achieved
independence on January the 1st 1901. This statement however is erroneous in that absolute independence could not be achieved in one step such as
federation. To genuinely attain legal and political independence many steps that are still being taken need to be completed. Australia is independent to the extent that it governs itself, however its decisions are affected by the past and thus it cannot be thought of as indisputably independent until these historical milestones cease to influence the legal system. This essay establishes why Australia has not yet achieved full independence and how complete independence can be reached. Initially however the steps that have been taken towards independence will be highlighted. Following which are the steps which can be taken, that will result in supreme independence. It will ascertain conclusively that Australia is not yet legally or politically independent and that several steps remain to be fulfilled to acquire such independence.
Although the constitution came into affect on the 1st of January 1901, “Australia was still not a true nation” (Sammut 2002:43) because it was still “defined as part of the British empire” (Sammut 2002:43). The new Federal government and the states were still subject to the Colonial Validity Act of 1865, allowing British legal supremacy over the Commonwealth. The Commonwealth still had the same powers it was simply distributed differently (Palmer 2004). In section 8 of the Constitution Australia remains a “self-governing colony within the British Empire.” This stance is maintained by Palmer elaborating that Australia (Palmer 2004) still had symbolic ties to a British Monarch, “God save the Queen” as the national anthem and the Union Jack for the national flag. Federation did not deliver independence to Australia.
During the peace conference in Versailles 1919 Australia took another step closer to independence. The Covenant of this conference hereby referred to as the Covenant of the League of Nations stipulates in Article 1 paragraph 2 that “any… State… may become a member of the league.” This allowed that the Commonwealth could be “acknowledged as a nation” (Christopher 2000:1) despite the Constitution labelling Australia as a “self-governing colony within the British Empire” (Palmer 2004:4). Therefore internationally Australia was gaining respect not as a mere outpost of Britain but as a self-sufficient country. Politically this seems rather insignificant, however it is this acknowledgement that preluded the consequences of the 1923 Imperial Conference.
After the 1907 Imperial Conference all self-governing colonies were deemed to be referred to as “Dominions.” At the 1923 Imperial Conference there was a consensus made that Dominions could “conclude treaties and agreements with foreign powers” (Palmer 2003:5). In addition to this if the now Dominions wished they were given the ability to administer their own military defence. Given that internal sovereignty had not yet been achieved yet diplomatic powers had been attained this appeared as a astonishing paradox (Evatt 1967). However paradox aside, an autonomous ability to associate through treaties with other foreign powers was gained. Thus Australia was one step closer towards absolute independence.
Using the outline given by Hudson and Sharp, the four ties connecting Australia to Britain are the “executive, legislative, diplomatic and judicial” (Hudson and Sharp 1988:136). As discussed previously despite the paradox “diplomatic… independence was achieved by the Dominions in 1923” (Gare 1999:253). As for the executive tie “the right of direct access to the monarch ceded… by the 1926 Balfour Declaration” (Gare 1999:252). So what remains are the legislative repercussions of the Colonial Validity Act of 1865 and the Judicial tie through access to the Privy Council. However these two aspects of connection go further than the superficial responses of the Australia Acts of 1986 and the Statute of Westminster 1931.
Initially however it was seen by Hudson and Sharp that “Australia became an independent nation state on the 11th December 1931” (Hudson and Sharp 1988:138). This date being the date of reception of the Statute of Westminster which did “give dominions legislative freedom to amend or repeal legislation… applied to them” (Hudson and Sharp 1988:119) from Britain. This meant that the dominions were allowed to pass domestic legislation that would’ve otherwise been regarded as “repugnant” (Gare 1999). Thus in Hudson and Sharp’s view after the statute of Westminster legislative, executive and diplomatic independence had been gained. However there are several details Hudson and Sharp have overlooked in their argument, which destabilizes their argument and deems it incorrect.
One such technical point on conjecture is that the legislation was “not adopted by… parliament for more than a decade” (Gare 1999:253) after its proposal in 1931. Thus the Statute of Westminster may have delivered legislative authority, but not until 1942 (Palmer 2004) in contrast to Hudson and Sharp’s 1931 claim. Their argument is that “Independence given” (Hudson and Sharp 1988:33) is the same as independence taken (Gare 1999); unfortunately this is not the legislative viewpoint.
Addressing Hudson and Sharp’s four-point plan of argument, judicial independence still remained to be dealt with. The British Privy Council continued to hear Australian appeals despite the “Apparent acquisition of… autonomy” (Gare 1999:253) by the Statute of Westminster. As a result although the executive, diplomatic and legislative ties to the crown had been sufficiently severed after 1841, the judicial link of the ability to appeal to the Privy Council compromised the notion of legitimate independence because of it being a British institution, an institution that utilized British precedent.
The basis behind Hudson and Sharp's argument is not the enactment of the Australia Acts 1986 which abolished the appeals to the Privy Council but the wording or the preamble which describes Australia as an already “sovereign, independent and federated nation” (Hudson and Sharp 1988:133). This overtly fails to acknowledge the remaining judicial link to Britain. Ergo Hudson and Sharps’ case stating that Australia became “an independent nation state on the 11th of December 1931” (Hudson and Sharp 1988:138) is redundant. Australia did not achieve independence before 1986.
There is one more point of technical refute that Hudson and Sharp have ignored. Despite the Privy Council (Limitation of Appeals) Act 1975 abolishing appeals from the High Court in state and common law matters, direct appeals from the supreme courts remained passible until the Australia Acts of 1986 (Palmer 2004). Thus it could be said that now independence was achieved because the judicial tie had been extinguished; however this is a fallacy. This being because the last Australia appeal to the Privy Council occurred with Austin vs Keele in 1987, not before 1986 (Gare 1999:261). The reason was because it had been lodged as an appeal before the implementation of the Australia Acts (Gare 1999:217). Subsequently after this appeal it emerges that all four arms of legal connection to Britain had been severed.
The argument of this essay is that the steps being taken (noted previously) did step towards independence but others need to be taken. These being that the idea of a republic is not necessary for independence and the notion of an “independent Australian common law” (Mason 1995:52).
It is said in Sue vs Hill (1999) that the United Kingdom is now regarded as a “foreign country” (Palmer 2004) although both Australia and Britain share the same head of state. This is a point of contention in that although we may have legislative, executive, diplomatic and judicial independence, this head of state remains a prominent figurehead symbolising our British political link. “The British Monarch remains Head of the Commonwealth long after the British Empire has ceased to Exist” (Whitlam 1985:130). Because of this all-pervading figurehead, until the formation of a republic, independence: it is thought will never be achieved.
As the Governor-General being the “the embodiment of the Crown in Australia” (Smith 1999) they exercise the prerogatives of the crown in Australia. Although when the Governor-General exercises their constitutional powers it is done “so in his own right and not as a delegate of the Queen” (Smith 1999). Thus there is no link between the Queen and the Governor-General in legal power, there may have been in the past but not now. Moore proves this in saying that “the Governor-General’s authority stemmed from the Australian Constitution” and that “not even the Sovereign could direct him in the performance of his constitutional duties” (Moore in Smith 1999). Hence although becoming a republic would abolish the Queen as our head of state and symbolically achieve independence, Australia has already completed this step in the wording of the Constitution s61.
Chisholm and Nettheim describe the reception of English law in 1788 as a “starter kit” (Chisholm and Nettheim 2002:25) the colonies. With regard to the argument of this essay, the English common law at this time could be “developed” (Chisholm and Nettheim 2002:15) by the local courts of the colony. Thus in 1788 the colonies of course started with British precedent, however Australia built upon these to reflect its own legal identity. The case proposed is that although 200 years later one would assume these British precedents would have now been overlapped with Australian decisions it has been demonstrated that a small amount still exist. One such example is in State Insurance Commissioner (SA) vs Trigwell (1979). This case displays an “ “ancient British rule” (Chisholm and Nettheim 2002:16) by which landowners are not responsible for their livestock if they cause accidents (Chisholm and Nettheim 2002). Gibbs expands upon this point in saying that the principals of British common law would not descend into Australian law all at one point in time but that they are “expounded from time to time… whenever they should be applied” (Gibbs in Cook, Creyke, Geddes and Holloway 2001:36). Consequently the Australian common law system cannot be referred to as independent until Australian precedent builds upon these hidden traits of British common law. When this is bound to occur is unknown.
In conclusion although diplomatic, executive and legislative independence was gained with the legislation of the Statute of Westminster in 1942, judicial absolution was not addressed at this point. Despite the Australia Acts of 1986 technically this did not end all appeals to the Privy Council as one case was heard in 1987. Subsequently all four areas of power now had independence within Australia, others remain to be addressed however. One of these is not the symbolic head of state being a political link to Britain that could only be remedied by the formation of a republic. The remaining link, despite its quasi triviality is that British precedent still affects Australian Common law. This is unfortunately not something that can be dealt with very easily, not that anything relating to legal independence can really be said to be remedied easily. The poignancy of it is that it will continue to affect the outcomes of Australian court decisions as long as it remains a first of case in Australia. This point alone emphasizes that Australia is still not legally independent from Britain and it will remain this way for a long time to come.
Bibliography
Chisholm, R., Nettheim, G., (2002) Understanding Law, Chatswood: Butterworths.
Christopher, L., (2000) Gallipoli was a turning point in Australia’s History, Wilderness School http://www.wilderness.com.au/simpsonessay2000.html
Cook, C., Creyke, R., Geddes, R., Holloway, I., (2001) Laying Down the Law, Sydney: Butterworths.
Evatt, H., (1967) The king and his dominion governors, London: Cass.
Gare, D., (1999) Dating Australia's Independence: National Sovereignty and the 1986 Australia Acts, Australian Historical Studies, Volume 30, Number 113, October.
Hudson, W., Sharp, M., (1988) Australian Independence: Colony to Reluctant Kingdom, Melbourne: Melbourne University Press.
Mason, A., (1995) An Australian Common Law, lecture to ALTA conference “cross currents”, ALTA publishing.
Palmer, P., (2004) Australian Independence, Palmer’s Oz Politics http://www.ozpolitics.info/rules/ind.htm
Sammut, J., (2002) A battle for the past: a Victorian perspective on colonial nationalism and Australian republicanism. Journal of Australian Colonial History, v.4, no.1, Apr 2002: (41)-56.
Smith, D., (1999) The Governor General is our Head of State, Australians for Constitutional Monarchy http://www.norepublic.com.au/essays/Essay_GG_HoS.htm
Whitlam, G., (1985) The Whitlam Government, Ringwood, Victoria: Penguin.