Paragraph (a) of our Terms of Reference required the Commission, among other things, to report on the revision of the Constitution to 'adequately reflect Australia's status as an independent nation'.
The Australian States were, by the time of Federation, self-governing colonies of Great Britain. They had been given constitutions by the Imperial Parliament. Under these constitutions the local Parliaments and Governments were left to manage their own affairs in local matters without interference from the Imperial authorities. In relation to those matters the Governor of the colony was required to act, by virtue of constitutional practice, on the advice of colonial ministers. In matters of Imperial concern the Governor was, however, responsible to the Imperial Government. In the last two or three decades of the nineteenth century the number of matters regarded as of Imperial significance was reduced. Generally speaking, by the time of federation, the Australian colonies had complete self-government except in fields of defence, foreign affairs and merchant shipping.
For the purposes of international law the British Empire was one unit or 'nation', The Imperial Government was responsible to other nations for the observance within the whole Empire of treaties and other rules of international law. The colonies, therefore, had no power, for example, to enter into treaties, declare war and peace and send or receive ambassadors. It was no answer to a complaint to Britain from a foreign country that the act complained of was committed by the Government of a self-governing colony.
Provisions in all the colonial constitutions provided for the 'reservation' or 'disallowance' of legislation enacted by the colonial legislatures. The Governor might be instructed (or might choose), when presented with a colonial Bill, to 'reserve' it for Her Majesty's pleasure. What this meant was that it would be referred to the British Government to consider whether it should be allowed to become a law. In 1907 an Imperial Act - the Australian States Constitution Act 1907 - set out classes of laws that were required to be reserved. In addition, the Queen, that is the British Government, could 'disallow' legislation passed by colonial parliaments within, usually, two years of its enactment. Upon being disallowed an Act ceased to be a law. By 1900 these powers of the British Government were exercised only in rare cases where Imperial or foreign interests were involved, such as laws which discriminated against the people of other countries (usually Asians or Africans).
The British Parliament retained power to make laws for Australia; indeed the Australian Constitution was one such law. By virtue of the Colonial Laws Validity Act 1865 (Imp), the colonial parliaments could not validly enact a law which was repugnant to an Imperial law that was expressed to operate within the colony. By 1900, however, the British Government pursued a policy of not making laws for the self-governing colonies on matters outside Imperial concern, unless the colonial Government requested it.
A further Imperial institution that bound all the colonies was the Judicial Committee of the Privy Council to which appeals could, in certain circumstances, be taken from the highest courts of the colonies. In form this was an appeal to the Queen, but it was in fact an appeal to a court of judges appointed by the Lord Chancellor, a British Minister.
The creation of the Commonwealth of Australia by the union of the six Australian colonies did not in itself change the status of Australia or its relationship with the United Kingdom. The restrictions referred to above100 on the power of colonial Governments and legislatures continued, generally speaking, to apply to both the States and the Commonwealth. The same was true of the other great Dominions of the Crown, which by 1910 included Canada, New Zealand, South Africa and Newfoundland.
Section 74 of the Constitution of the Commonwealth, however, prevented appeals going to the Privy Council from the High Court in most constitutional cases (that is, those concerning the boundary between the powers of the Commonwealth and those of the States or between two or more States) unless the High Court of Australia certified that the case should go to the Privy Council. It also gave the Parliament of the Commonwealth the power to further limit appeals from the High Court. Any proposed law to that effect was required to be reserved 'for Her Majesty's pleasure', which in reality meant the approval of the British Government.
The Australian Constitution also contained provisions which, while they could not be given their full application because of Australia's status as part of the Empire, were seen by later judges to contain the potentiality of full nationhood. These included the power of the Parliament of the Commonwealth to make laws with respect to the defence of Australia (section 51(vi.)) and external affairs (section 51(xxix.)). Barwick CJ described this situation as follows:
Whilst the new Commonwealth was upon its creation the Australian colony within the Empire, the grant of the power with respect to external affairs was a clear recognition, not merely that, by uniting, the people of Australia were moving towards nationhood, but that it was the Commonwealth which would in due course become the nation state, internationally recognised as such and independent. The progression from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs. Section 61, in enabling the Governor-General as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided.101
The evolution toward nationhood of the British Dominions proceeded rapidly as a result of World War I, in which Australia and the other British countries played a prominent part. The first major step toward self-government in foreign affairs occurred at the Peace Conference of 1919. The Dominions had separate representation equivalent to that of other non-major powers. They signed the Peace Treaty, became members of the League of Nations, and were given mandated territories under the authority of the League.
The Imperial Conference of 1926 resulted in the famous 'Balfour Declaration' which declared that the United Kingdom and the Dominions 'are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations', It was also stated that 'every self-governing member of the Empire is now the master of its own destiny'.
As a result of this resolution it was further declared (a) that the Governor-General was no longer a representative or agent of the British Government; (b) that the United Kingdom Government would not advise the King on Dominion matters against the views of the Dominion Government: and (c) that the Dominion Government had full power to enter into treaties, appoint ambassadors, etc, in its own right. In any case when action of the King was required, the King would act on the advise on the Dominion Government.
The above resolutions were put into effect without change of the law. There remained, however, some other legal disabilities on the Dominions, which conflicted with the broad scope of the Balfour Declaration, and which had to be removed by Imperial enactment. The Parliaments of the Dominions could not make laws contrary to Acts of the Imperial Parliament which operated in the Dominions, because of the provisions of the Colonial Laws Validity Act 1865 (Imp). There was also some doubt as to whether the Dominion Parliaments could make laws operating outside their territories. These restrictions were abolished by the Statute of Westminster 1931 (Imp) (sections 2 and 3) subject. in the case of Australia, to the adoption of the Act by the Parliament of the Commonwealth. This was done by the Statute of Westminster Adoption Act 1942 (Cth), to operate from the outbreak of World War II, that is, 3 September 1939.
The legislative supremacy of the United Kingdom Parliament remained, but section 4 of the Statute of Westminster 1931 (Imp) provided that no Act of the United Kingdom Parliament should extend to a Dominion as part of its law unless it expressly declared that the Dominion had requested and consented to its enactment. Sections 8 and 9 of the Statute of Westminster 1931 (Imp) ensured that the power given to the Parliament of the Commonwealth to repeal or amend Imperial laws operating in Australia did not extend to overriding the Constitution.
In relation to World War 11, Australia acted as if it were bound by the declaration of war by Great Britain against Germany and did not issue a separate declaration. Similarly the Australian Government assumed we were at war when Italy declared war against Great Britain on 10 June 1940. The Dominions of Canada and South Africa issued separate declarations of war in both cases. In respect of the declarations of war against Finland, Hungary, Rumania and Japan in 1941, a separate Australian declaration of war was made. The King, on the advice of the Australian Government, purporting to act under section 2 of the Constitution assigned power to the Governor-General to make these declarations.
On the other hand, in 1951 the Commonwealth adopted the view that the Governor-General had the necessary authority to declare peace with Germany without any specific delegation from the Queen. The Solicitor-General, Professor KH Bailey, advised that the Governor-General could exercise all prerogatives relating to peace and war and that the assignment to declare war in 1941 was legally unnecessary.
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 Australia had achieved full independence as a sovereign state of the world. The British Government ceased to have any responsibility in relation to matters coming within the area of responsibility of the Federal Government and Parliament.
100 para 2.115. [Back]
101 Seas and Submerged Lands Case(1975) 135 CLR 337, 373.[Back]