Did Australia become legally and politically independent on 1 January 1901?

CCJ 13 Essay Question: Did Australia become legally and politically independent on 1 January 1901? If not, why was this the case – what factors continued to tie Australia to Britain, and when was independence actually achieved (or when will it be achieved)? In your answer address any important steps in the process from colonization toward an independent legal system (such as particular legislation or cases, or changes in the application of precedent) affecting this process.

Introduction
The question of whether Australia became legally and politically independent on 1 January 1901 is unclear and requires a close consideration of factors that continued to tie Australia to Britain, and steps in the process of colonization toward what can now be called Australia’s independent political system. In assessing this question, one must turn first to the British arrival on Australia’s shores in 1787. The doctrine of terra nullius was applied almost immediately since the Aboriginals did not have written laws or hierarchy or ruling in their ways of living, and with that, the English law was brought to settle in Australia. This paper argues that the year 1901 ought to be considered the year when Australia started its journey to independence. However, history proves somewhat confusing, and whilst Australia underwent minimal political and legislative changes, it incurred massive side effects in the process of attaining independence. One may even go so far as to suggest that the British seemingly ‘baby-sat’ Australia from its toddler through to teenage years – Britain slowly releasing different areas to the Australian government’s control throughout an extended period – until finally, Australia reached adult-hood.

The Journey
Although it is difficult to pinpoint precisely the time at which independence took place, it is certain that Australia became independent. However, there is not one day or date that anybody could point to. There was no declaration of independence. There was no constitutional amendment that established Australia's independence and national sovereignty.
Many believed Australia achieved independence and sovereignty gradually and not immediately following federation in 1901. From 1901 to 1926 Australia was a self-governing colony within the nation of the British Empire. Britain still had control over Australia's international relations, and Australian parliaments could not make laws repugnant to Britain. Australians at that time considered themselves to be British citizens.

The Governor-General and State Governors were agents of the British government. In respect of Australia, the Queen only acted on the advice of the British government. Neither the Australian Prime Minister, nor State Premiers, could offer direct advice to the Queen.

The following factors contributed to Australia’s legal independence:
• Independence for the executive arm of the Commonwealth Government was achieved through the Imperial Conferences of 1926 and 1930 and confirmed by the Imperial Statute of Westminster 1931.

• Independence for the Commonwealth Parliament was largely achieved through the Imperial Statute of Westminster 1931; however, it was only adopted formally in Australia in 1942, backdated to 3 September 1939, via the Statute of Westminster Adoption Act 1942.

• Although the precise date is unclear, Australia became recognised by the international community as a nation apart from the British Empire some time between the end of World War I and the end of World War II.

• Independence for the judiciary in respect of Federal matters was largely achieved in 1968 through the Privy Council Act 1968.

• In 1975, all appeals from the High Court to the Privy Council were abolished, with one very minor exception, via the Privy Council (Appeals from the High Court) Act 1975. Although appeals to the Privy Council from State Supreme Courts continued until 1986, since 1978 the decisions of the Privy Council in these matters were not binding on the High Court of Australia.

• 3 March 1986 Independence for the six State governments was achieved with the Australia Act 1986. Ironically, the Australian Federation ceased to be a colony decades before the States as a result of the Statute of Westminster.
Following these events, it could be suggested that Australia has attained complete sovereignty. While there is some argument about the actual date of Australia's complete sovereignty, there can be no doubt that it has been fully achieved since 3 March 1986 when Royal Assent was given to the Australia Acts.

Furthermore, Australia is now recognised by other nations in the international community and is a party to many international treaties. For example, Australia is party to the ‘United Nations Human Rights Council’, ‘Convention on the Rights of the Child’ and many other treaties. This reaffirms Australia’s independent status within the international community and this is important as Australia reign in sovereignty with other nations.

Australia is fully capable of running its own internal affairs through its own governments operating under its own Constitution. In the Constitution, it gives power to the Parliament to make laws for the peace, order and good government of the Commonwealth. This is important as Australia inherit powers for the protection of its own and to control the finances, external and internal affairs, military, trade and commerce, powers of judiciary, immigration and etc. Whereas in another section of the constitution, the High Court of Australia is given the judicial powers.

The Constitution was an important step; symbolically and legally making Australia independent from England. Australia has proven its capability so far in since the legal and political independence achieved in 1986.

Factors continued to tie Australia to Britain
Despite the fundamental changes to the Australian government and legal institutions described above, the fact is that Australia is still subject to the British monarchy. The head of Australia is still the Queen - who is from Britain - and her representative who is appointed in Australia has powers to pull a double dissolution anytime with our parliaments.
Although Australia gained independence from the Britain in 1901, Australia is still a Constitutional Monarchy State. The Queen, Australia’s monarch or sovereign, is also the head of state. In keeping with the Westminster tradition, the Constitution provides that the Queen shall be represented in Australia by the Governor-General of the Commonwealth of Australia and the Governors of the six States, who exercise the constitutional powers of the Sovereign. The Governor-General corresponds to the Governor of a State and the Prime Minister corresponds to the Premier. According to convention amongst the Governors, the Governor-General is treated as the first among equals, but has no duties or powers to control or supervise.
Constitutional conventions which evolved for hundred years in England and which are accepted or evolved further in Australia have developed to ensure that, in practice, the system works as a representative democracy which responds to the will of the community as expressed through elections. Due to its nature, the established constitutional conventions are not set out in the Constitution or other acts of Parliament but they are so uniformly followed and expected to be followed that they are binding in practise, even though the courts will not generally enforce them directly.

Independence
Through the enactment of the Australia Act, the commonwealth parliament and Australian law clearly acknowledged that there is no lack of independence. The states were given full power to make laws for their own following the responsible government ways even when those laws had extra- territorial operations.

The Australia Act completed the move of the states from colonies to sovereign independent political entities that were part of a federation, subject only to the commonwealth constitution and to having no international functions or status.

Commonwealth of Australia is technically a creation of the British Imperial Parliament through the Commonwealth of Australia Constitution Act 1900 (IMP) applied by paramount force to Australia even though Federation in 1901 is often assumed as the moment of “independence”. There was uncertainty as to the applicability of British Imperial laws on the Commonwealth of Australia.

In 1865, the Colonial Law Validity Act (CLVA) was passed to eliminate limitations that were placed on the law-making powers of the early governors and Legislative Councils. The purpose of CLVA was to remove inconsistency between the Colonial and Imperial legislation at that time. It was to counter act the issue of repugnancy where any colonial law contradictory to the provisions of imperial statute of the British colony was override. The Act nullified several judgment of a South Australian judge was known for his notorious judgments on repugnancy of South Australian laws against English laws. But instead of having the CLVA to give opportunity to Australia for independence in the legal sense, the CLVA seemed to have proved that the British government more supreme.

The Statute of Westminster which was passed in1931 overrode the Colonial Law Validity Act. This is in result of the Imperial Conference of 1930 pursuing the abolishment of the supremacy of British parliament over the Dominions legislatures. As a recommendation, the Statute of Westminster 1931 repealed the CLVA 1865 in its application to the Dominions. The statute established a legislative equality between Australia and the United Kingdom. It marked the road to independence of Australia and the other Dominions.

The imperial laws continued to be paramount in Australia until the Australian Act 1986 came about. The Act eliminates the remaining ties between the legislature and judiciary of Australia and the United Kingdom. One of the significance of the act was the removal of the Privy Council from the remaining appeals in the Australian legal system. This allows the High Court of Australia to substitute as the highest power in the final court appeal in Australian law. To mark the significance of the Australian Act 1986, Queen Elizabeth II traveled to Australia for the signing of the proclamation for the law.

As a result of these laws, Australia became a fully independent country. The text of the Constitution is considered now as fully separated from the text in the original Act. Even if the United Kingdom Parliament were to repeal the Commonwealth of Australia Constitution Act 1900, it would have no effect on Australia since only the Australian people can amend the Constitution, by referendum.

Conclusion
Clearly, the arrival of British colonies on Australian soil established a fundamental bond between Australian and English law and politics. However, over the passage of time this bond has deteriorated, and following significant events such as Constitutional changes, proclamation of the Australian Act in 1986 and Australia’s Status as an independent State within the international community; it seems now evident that Australia is an independent nation.

Whilst questions still arise as to Australia’s continuing acknowledgement of the monarchy and its status as a Commonwealth country, it can be argued that the bond between British and Australia is almost like a mentor and mentee. This bond should always be maintained as Australia could always use another counterpart in international relations or even just for continual support from Britain. Thus in conclusion, it is clear that Australia can liaise with Britain and any other independent country on the same level of sovereignty.












References

• Blackshield T. & Williams G. 2002, Australian Constitutional Law and Theory; commentary and materials, The Federation Press, NSW.

• Cook C., Creyke R., Geddes R. & Holloway I. 2001, Laying Down the Law, LexisNexis Butterworths, Australia.

• Hudson W.& Sharp M., 1988, Australian Independence Colony to Reluctant Kingdom, Melbourne Univeristy Press, Carlton, Victoria, Australia.

• Attorney-General’s Department, http://www.ag.gov.au/ , viewed 6 September 2006

• Australia’s Prime Ministers, http://primeministers.naa.gov.au/ , viewed 6 September 2006

• Mark Leeming, 'The liabilities of Commonwealth and State governments under the Constitution' (2006) 2 Australian Bar Review 27