Colony and Empire
Section Two
Australian Laws: Subject to Britain
POWERS OVER COLONIAL AUSTRALIA
From 1788 to the 1820s the legislation of Britain provided all of the laws governing Australia.
In 1823, the main Australian colony - New South Wales - was permitted to establish its own legislature, (the Legislative Council) so that some laws were locally produced (although proper democracy was yet to come). Local legislatures were created in the other, and ensuing, colonies over later years, thus adding to the extent of local laws created.(26)
A great number of laws were subsequently passed by the governments of the several colonies in Australia. However, doubt arose as to the validity of such laws. To rectify the situation, the Imperial Parliament in Britain passed the Colonial Laws Validity Act 1865.
This Act ensured the legal validity of colonial laws which were:
1) Held to be against ("repugnant to") Imperial Acts relating to the colony (only those sections of a colonial law held to be repugnant were void, while the rest of the colonial law was deemed valid).
2) Held to be repugnant to fundamental principles of English law.
3) Passed without being reserved by the colonial Governor (only if contrary to instructions received by the Governor, but not if contrary to Letters Patent, etc.).
4) Passed, in accordance with existing law, in respect to the colonial legislature's Constitution, powers, or procedures.(27)
However, the Colonial Laws Validity Act did make clear the already existing legal principle that if any laws were passed in Australia which were at odds with a relevant Imperial law, then the British law would override the Australian law.(28)
Also, the Australian colonial parliaments had other limitations placed upon them. Some kinds of legislation (for example, constitutional amendments) could not be approved by the British-appointed local Governors, and "had to be reserved for royal assent on the advice of United Kingdom ministers". As well as which, "any colonial legislation, even if approved by governors, could be disallowed by the sovereign within a specified period on advice of United Kingdom ministers". These controls, however, were used sparingly; indeed, "by the end of the century only fifteen New South Wales bills, for instance, had been reserved for royal assent, and all had received it; of all the bills passed by all the colonial legislatures in Australia to that time, only five had been disallowed". These control devices "were used sparingly because London had no interest in unnecessarily provoking the colonies, but also because, by and large, the colonial parliaments had no wish to provoke London". That is, the colonial parliaments self-muzzled their own legislative independence, because they realised that the British government could override any colonial law that they considered to be disagreeable or against the perceived interests of the British Empire.(29)
REJECTING PROPOSED LAWS (BILLS)
OF COLONIAL AUSTRALIA
All proposed laws (Bills) passed by the Parliaments of the Australian colonies did not actually become law until approved by the British-appointed Governor.
However, "the Queen" (in actual practise, the British Government) could disallow (i.e. veto) any law passed by any colonial parliament and its Governor. Alternatively, the Governor could reserve a Bill for "Royal Assent", and if the Assent was not given, then the Bill would lapse (that is, it would not become law) even though it had not actually been disallowed as such (in other words, a sneakier kind of veto). The power to "Reserve" Bills was also sometimes used in order to force colonial parliaments to re-word or re-draft Bills. As well as this, prior reserving of Bills, of withholding Assent, and of disallowance (as well as official communications and instructions from Britain) were enough to enforce Imperial will upon Australian parliaments (both before and after Federation) as the elected parliamentarians knew that they had to frame their proposed laws in such a way so that they would not be stopped by the British Government, or by its local vice-regal representatives. The Australian immigration laws (those of the separate colonies, and those of the new Commonwealth) are a good example of this (see relevant section in this publication).
Not only was the act of reserving Bills used many times in Australia, but - on five separate occasions - Bills which had been passed into law by the Australian colonial parliaments and had been assented to by the local colonial Governors were afterwards disallowed by Britain:(30)
1860 - Victorian law re. regulation and discipline on armed vessels.
1862 - South Australian law re. marriage.
1863 - Tasmanian law re. prisoners.
1864 - South Australian law re. the Marine Board.
1864 - South Australian law re. transportation of convicts.
So, using their powers of reservation and disallowance, the British Government - and the British-appointed Governors - stopped various Australian Bills from becoming law (even though these bills had been agreed to and passed by Australia's elected representatives).
Indeed; the Australian Constitution of 1901 (which was only brought into force via an Act of the British Parliament) specifically included two sections to enable the Monarchy to "disallow" any law passed by the Australian Parliament. Section 58 gives the Governor-General the power not to pass a Bill into law (i.e. he can withhold Assent). Section 59 gives the Queen the power to disallow any law passed by Parliament, if done "within one year" of the law having received the Governor-General's Assent.(31)
At the time of federation it was envisaged that "the reserve power of disallowance will be wisely and sparingly exercised... except in cases involving Imperial and international relations". But, nonetheless, it was envisaged that Britain's power to reserve Australian laws (all in the name of "the Queen", of course) would quite possibly be used. After all, such an action was possible because the Commonwealth of Australia was not an independent and sovereign nation. As was stated in 1901 by John Quick and Robert Garran (who were both involved with the framing of the Australian Constitution): "the Commonwealth is only quasi-sovereign... and the amending power - the highest legislature of the Commonwealth - is a colonial legislature".(32)
Quick and Garran's words of 1901 deserve repeating:
"the Commonwealth is only quasi-sovereign... and... the highest legislature of the Commonwealth - is a colonial legislature".
These words remained undeniably true up until the passing of the Statute of Westminster in 1931 (passed by the Commonwealth of Australia in 1942), still being relevant until the passing of the Australia Act in 1986; and - in a technical sense - arguably still true today.
The bureaucrats in the British government's Colonial Office (in London) had proposed an alternative section to be put into the Constitution whereby "the Crown should list in the Constitution the sorts of bills which would be reserved for Royal approval". Actually, the Constitution in section 74 does give one such example of this, regarding the limiting of appeals to the Privy Council ("The Queen in Council"): "proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure". This was the case for the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975; as well as the Australia Act 1986.(33)
POWERS OVER
THE AUSTRALIAN COMMONWEALTH
Even after the Australian colonies federated in 1901, thus creating the Commonwealth of Australia, "the UK parliament retained its sovereign power to enact laws that applied in Australia". Indeed, the Colonial Laws Validity Act continued to be "regarded as binding the Commonwealth Parliament".(34)
In the years following federation, "at the state level, governors still were appointed by London, still were instructed by London, still reported to London and still compromised the sole channel for communication between the state capital and London".(35)
In 1908 London forced a compromise between the Australian federal government and the NSW state government in a matter of trade representation; and in 1914 London moved to limit the exercise of power of the Governor of Tasmania. The point being made here is that Britain was able to authoritatively intervene in Australian internal affairs.(36)
As W.G. McMinn has stated:
"the degree to which Australian governments and legislatures were subordinated to Downing Street had been greatly lessened by the early 1900s, but the fact of ultimate imperial supremacy remained. Both the Commonwealth and the States were frequently reminded of their inferior status. In the years before World War I, for example, efforts by the Commonwealth government, particularly under the Prime-Ministership of Deakin, to communicate directly with the British government rather than through the Governor-General and the Colonial Office were repeatedly rebuffed. Neither the States nor the Commonwealth were permitted to legislate with extra-territorial effect until after 1930: not until the Statute of Westminster was passed in 1930 was the Commonwealth granted the right, an indispensable attribute of sovereignty, to legislate fully for its citizens wherever they might be; not until 1933 did a Privy Council decision give the States power to apply any legislation extra-territorially, and even then it remained necessary to show the connection between the law being applied and the State's territorial rights. Moreover the Crown refused, despite the fact that the Constitution gave the Commonwealth power over 'Trade and commerce with other countries' and despite vehement protests, to acknowledge the right of the federal Parliament to legislate in terms inconsistent with imperial shipping Acts. As late as 1925 the Commonwealth found certain provisions of its Navigation Act of 1913 voided by the High Court because of repugnancy to the British Merchant Shipping Act of 1910."(37)
Following pressure, mainly from the Irish Free State and South Africa, at the Imperial Conferences held in 1926 and 1930, the British government passed the Statute of Westminster 1931, which "stated that no United Kingdom law would in future apply to a Dominion unless that Dominion requested and consented to the law".(38)
The Statute of Westminster was not adopted by the Australian Government straight away. However, it was finally adopted in 1942 "when various technical inconveniences brought about by World War II made it expedient to do so. The adoption was then back-dated to the outbreak of war". Hudson and Sharp have stated that "the cause was less nationalistic fervour than a need to expedite the implementation of merchant shipping legislation and to remove doubts about some of the government's activities under the National Security Act."(39)
Al Grassby says that the reason for the adoption of the Statute of Westminster "was because a couple of homosexuals in the Australian Navy were convicted of murder, and sentenced to death, while the navy's flagship Australia was on duty in the Coral Sea. The Australian Government and courts were unable to intervene because the ships were under the control of the British Admiralty. When the Curtain government sought to intervene they were told by the British Prime Minister's office that the lack of sovereignty was all due to Australia failing to ratify the Statute of Westminster of 1931. Curtin lost no time in doing so and back-dated the ratification to 1939. The sailors did not die but were paroled after eight years."(40)
Reasons for Australia not immediately adopting the Statute of Westminster were varied; such as "the states were loath to accept an immense boost to the status of the federal authority", many politicians wanted to maintain "the London connection", and some politicians thought that "votes might be gained from an ultra-loyalist posture". Robert Menzies, as the then Attorney-General, put forward adoption bills in 1936 and 1937 in order to enact the Statute, but these "were let lapse by a government which gave them no priority on parliamentary business papers."(41)
When it was finally enacted, the Statute "put an end to the arrangement by which the Governor-General's chief role was that of representative of Imperial interests", so that the Governor-General's role was from then on meant to be solely in looking after Australia's interests.(42)
However, "the Australian states preferred not to have the Statute of Westminster applied to them. As a result the (Imperial) Colonial Laws Validity Act of 1865 continued to apply to Australian states thus creating odd situations including the continued application of laws repealed in Britain. The Australia Act of 1986 ended this situation".(43)
THE AUSTRALIA ACT OF 1986
Even though the Statute of Westminster gave a lot more independence to Australia at the national level, at the state level many legislative and constitutional links with Britain remained (often rendering the Australian states as subject to Britain). This was all changed with the passing of the Australia Act in 1986.
Until the passing of the Australia Act:
1) The laws of the Australian states could be disallowed on the formal advice of the Ministers of the British Government.(44)
2) Appointment of state governors were subject to British approval, or at least had to be appointed by using the British government as intermediary.(45)
3) State governors were required, under Royal Instructions, to seek approval from Britain before approving certain categories of bills (such as regulation of coastal trade, which "could adversely affect British trade and shipping").(46)
4) Appeals could be made, over matters relating to state law, to the Privy Council in Britain (i.e. "The Queen in Council").(47)
The Australia Act 1986 became law only after all of the Australian states agreed to it, along with the Australian federal government; but also, only after the British Government agreed to pass a "mirror" Australia Act; and even then only after the Queen personally assented to both versions of the Australia Act (in the UK, and during her visit to Australia; although the Australian Governor-General could have assented to the Australian version, but did not do so, as it had been arranged for the Queen to do so while she was in Australia).(48)
The Australia Act 1986 could never have become law in Australia unless it was passed by the British Government. If just the Australian Parliament had passed it, it would have been an invalid piece of legislation; that is, the Australian Government did not have the power to pass the law unless it was agreed to by the British Government.
"Since the enactment of the Australia Act 1986, an Act of Parliament of a State that has been assented to by the Governor of the State is no longer subject to disallowance by the Queen or suspension pending signification of the Queen's pleasure".(49)
On a national level, "The power of the British Crown to disallow Australian legislation remains in our Constitution (s.58 and s.59) although it would seem politically impossible to invoke it". However, it is important to realise that, in this case, "seem" is the pertinent word; as, if an extraordinary or controversial Australian Government (especially a "radical" one), were to pass laws wholly at odds with the British Establishment (or even at odds with the Australian Establishment) or was to pass laws which were totally against the liberal-internationalist ideology currently dominating world affairs, sufficient pressure could be brought upon the British Monarch to disallow such laws (perhaps a tactical move by the Establishment, which could be used as a prelude to a "constitutional" coup).(50)
The fact is that such a disallowance carried out personally by the Queen could happen in unusual and/or extreme circumstances, despite any prattle about "conventions" or "agreements" (such as those arising from the 1930 Imperial Conference). The Queen, and the Governor-General, still have the Constitutional power to disallow Australian legislation.(51)
With the passing of the Australia Act 1986, it has been stated that "the United Kingdom Parliament now has no legislative authority whatsoever in respect of Australia".(52)
However, it has been maintained by some that the British Parliament could repeal the Australia Act 1986 (the version passed in the U.K.), the Statute of Westminster 1931, the Commonwealth of Australia Constitution Act 1900, and even the Colonial Laws Validity Act 1865; as well as repealing any other Acts it saw fit; and thus regain legislative authority over Australia. However doubtful and esoteric this suggestion may be, it makes the point that Australia can never be a fully independent nation until it becomes a properly constituted Republic, established from a basis of national sovereignty (rather than from a basis of "sovereignty" granted by a British government).
It would be relevant to note here that various Imperial (British) laws still apply to Australia, albeit that the Australian State and Federal governments (as applicable) now have the power to repeal such laws.(53)
STILL A COLONY?
In some ways, the status of Australia is still regarded as being situated underneath Britain:
1) The Australian Constitution - the legal document that established, and defines, the Commonwealth of Australia - states in its Preamble that the "colonies" (now the "states") of Australia "have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland" (emphasis added).
2) The Oath of Allegiance, as set out in the Schedule to the Australian Constitution, declares that Allegiance is to be sworn to "the King or Queen of the United Kingdom of Great Britain and Ireland" (of course, such an Oath is to be given in relevant form, as it was recognised that the name of the Monarch may be changed "from time to time"). The Schedule sets out the Oath thus: "I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!".
3) The Commonwealth of Australia Constitution Act's Section 8 (part of the Preamble to the Constitution) states that the Commonwealth of Australia may be regarded as a "self-governing colony" (emphasis added). Australia's status has changed from a collection of several actual colonies to the status of a self-governing dominion to the status of a basically independent country. However, the above law still exists, and - in a technical sense - the "form" of our constitutional structure is still somewhat colonial, in that Australia still comes under the "rule" of "the King or Queen of the United Kingdom of Great Britain and Ireland".
4) Despite any protestations about the Queen being Australian, or about on whose advice her actions are made, it is the Queen of England (legally, the Queen of the United Kingdom) who formally appoints the Governor-General of Australia and the Governors of the Australian States. It is this same Queen who forms an integral part of the Parliament of Australia (see section 1 of the Australian Constitution), and in whom the "executive power of the Commonwealth is vested" (see section 61). Indeed, we are not seen as independent citizens, but (as Section 117 of the Constitution shows) merely rather as "subjects of the Queen".(54)
5) It has been pointed out that, by our very own Constitution, Australia is regarded as "British". Section 44 refers to the fact that no-one can become a Senator or a Member of the House of Representatives (MHR) if he/she is "a subject or citizen... of a foreign power". This clearly does not apply to Britain, as all Senators and MHRs were British subjects at least right up to 1949, and a certain number still were right up until the 1990s. This section of the Constitution was actually designed to be applied in regards to all non-British countries. As long as this section remains in the Constitution then it is - in effect - a constitutional fact that since Britain is not regarded as a "foreign power", that Australia must therefore be regarded as a "British country".
6) British laws still have "force and effect" in Australia.
United Kingdom legislation still applies in Australia as established under law, for example:
Australian Capital Territory: Imperial Acts Application Act 1986 (reprinted as at 17 December 1993).
New South Wales: Imperial Acts Application Act 1969 (updated l December 1994).
Queensland: Imperial Acts Application Act 1984.
Victoria: Imperial Acts Application Act 1980.
Interestingly, the existence of such Acts came to the fore following the implementation of anti-gun laws in 1996. Various pro-gun, sporting, and shooting organisations commenced pro-gun campaigns, often basing their arguments upon imperial law and common law, especially sections of the Magna Carta and the Bill of Rights, citing the Imperial Acts Application Acts.(55)
Published correspondence to one such pro-gun organisation from the Attorney General's department of New South Wales states that
"I have carefully noted your inquiry, and I can assure you that the 1688 enactment remains part of the law of New South Wales. Section 6 of the Imperial Acts Application Act 1689, specifically provides that the Bill of Rights remains part of our law. That same Act also provides that the Magna Carta of 1297 remains part of the law of New South Wales. However, as I am sure you are aware, the Magna Carta, the Bill of Rights, and all the legislation in force in New South Wales, is subject to legal and judicial interpretation by our courts. How the Bill of Rights impacts upon the daily administration of the State and upon members of our community remains an issue of legal interpretation".(56)
In addition, the Act of Settlement 1701 and the Bill of Rights 1689 determine who shall succeed to the British Throne - and therefore determine who shall be Australia's Head of State.(57)
Note: In this publication, the common usage of "Parliament" is retained, referring to the Houses of Parliament (the Senate and the House of Representatives). In technical legal fact, "Parliament" also includes the Queen of the United Kingdom (or her local representative, as applicable).
Note: Section 1 of the Australian Constitution states that the "Federal Parliament... shall consist of the Queen, a Senate and a House of Representatives". This means that one-third of the Australian Parliament is unelected - and this is utterly undemocratic.
Colony and Empire
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