Australia In The Twenty-First Century: An Independent and Self-Determining Nation
Written by The Honourable Barry O'Keefe, AM, QC   
Wednesday, 20 August 2003
The arguments advanced for changing our Australian Constitution from its present form, in which a constitutional monarchy is the model, to a republican model (the details of which are as yet substantially undefined), include the one that unless and until Australia is a republic we cannot have our own national identity, nor can we be independent and self-determining. As a subsidiary matter, sometimes stated, sometimes implied, the claim is made that Australia's image in today's world is "colonial" and that this stems largely from the fact that our Constitution is a product of the Parliament at Westminster, ie a document formulated in England and imposed on us in Australia.

None of these arguments, whether direct or by implication, has any substance. Australia is, and has for some time been, an independent and self-determining nation in every sense of the word. Australia as a nation was never a colony, although each of the States of Australia had colonial origins . Our Constitution is the product of the finest Australian legal and political minds, exercised over the last part of the nineteenth century, hammered out in the foundry of the Constitutional Conventions and presented for adoption as our Constitution. It is an Australian Constitution formulated by Australians, for Australians and the fact that, if one wishes to resort to sterile legalism, it is an enactment of the Parliament at Westminster, does not detract from its Australian character nor give to it any sense of being a foreign product imposed on the Australian people. It is a good document, a sound document, one which has and still does, serve us well.

The way in which a people view themselves is not a question of science, rather it is one of impression, and often idiosyncratic. The way in which others view us is not very different. There is in my view little doubt that we, as Australians, and others (including the British) viewed Chauvel and his Light Horse as very different from the British forces in the Middle East during World War I. The epic ride across the desert to Damascus was hailed as a daring feat of a kind that only the adventurous, devil-may-care, tough Australians would be capable of. No one - Australian, British, Turk or Arab - ever confused the Aussies with the Tommies. The same was true in the trenches of France. and on the beaches of Gallipoli. Our national celebration on 25 April associates us with our geographic neighbour, New Zealand, but not with Britain.

Could there be any doubt in the minds of Australians or others throughout the world that the Rats of Tobruk were Australian? Their gallant defence of Tobruk, holding out against the Afrika Corps and other Axis forces during World War 11, has always been regarded as a strictly Australian enterprise, characteristic of the strong, resilient Australian way. Can there be any doubt today about the difference in the view of most Australians from that of the British Government in relation to the French nuclear tests currently being held in the Pacific?

I have no doubt of my Australian identity, although my origins were Irish, indeed Irish Catholic. Likewise I have no difficulty that my Australian identity is associated with a Constitution which recognises that we have a Queen of Australia. If some others experience a problem of identity, whatever may be its origins, it is difficult to see how it could arise out of our constitutional arrangements. In this regard, may I remind you, that the view which I have just expressed, namely that Australia and a separate Australian identity were recognised both here and throughout the world was accepted as axiomatic by the Federal Attorney General, Dr H V Evatt, when he spoke in the House on 2 October 1942. He stressed that there was then, full recognition of Australia and Australians as different from Britain and British, "not only by Britain, but throughout the world".'

The implication therefore that we do not have an Australian identity and that the absence of such an Australian identity is tied to our constitutional arrangements is without scientific, statistical or other examinable basis - indeed, it would seem to be without basis at all.

According to the Oxford Dictionary (1 hasten to add Australian edition); page 543, independence involves not being dependent on the authority or control of others and not depending on something or somebody else for validity. Perhaps the Australian Macquarie National Dictionary expresses the concept of independence most appropriately for the present purposes when it tells us that to be independent means that we are "not subject to another's authority or jurisdiction, autonomous; free".'

Dependence in relation to a body politic may take any one of a number of forms. It may be political. It may be legal. Political dependence may be either domestic or international, and legal dependence may be either legislative or judicial. In none of these is Australia dependent. In each of these fields, it is autonomous and self-determining. No one outside Australia has the lawful power to tell us how to run our country, how to govern ourselves, how our courts should decide matters.

Prior to the establishment of the Commonwealth of Australia by the proclamation of the Australian Constitution, each of New South Wales, Victoria, Queensland, Tasmania, South Australia and Western Australia was a colony this meant that none of them was a sovereign body Self governing, yes! But a British colony nonetheless. In legal theory each of those colonies belonged to the British Crown as a matter of international law. On federation the former Australian colonies became States in the new Commonwealth, but not sovereign states as Windeyer J pointed in Bonser v La Macchia.' In contrast Australia was never a colony

The Australian Constitution was conceived as the Constitution of an autonomous political body, a Commonwealth, within a wider organisation then known as the British Empire. However, those who devised the Constitution produced a document, "which would serve an independent nation. It has done so and still does".'

At some time between 1 January 1901 when the Australian Constitution was proclaimed and 1931, when or after the Statute of Westminster-' was enacted, the international perception of Australia underwent a change. Chief Justice Barwick stated his view to this effect in a celebrated constitutional case in 1963 concerning Australian waters when he said:

"Australia did become an independent nation state" and "(Al)though it is difficult to pinpoint precisely the time at which this occurred, it is certain that Australia was such a nation state at the time of the making of the Convention on the Territorial Sea and the Contiguous Zone".'

This view places the date on which Australia became an independent nation State somewhat later than that selected by Dr H V Evatt. However, before dealing with Dr Evatt's view 1 should go back in history.

After World War 1 Australia was represented independently at the peace negotiations. It was represented by William Morris (Billy) Hughes. He pressed the argument that as at that time Australia was a self-governing country, not subordinate to the Parliament at Westminster, but rather a partner with equality of status, but of course not necessarily, equality of stature. That argument was "accepted as a hard practical fact"' by those nations, including Britain, which took part in the peace negotiations. The recognition of Australia as an independent nation state was therefore well established in the international scene by 1920.

The Balfour Declaration formulated at the Imperial Conference of 1926 constituted the formal recognition for Britain, and for the world at large, of the political fact that Australia was selfgoverning and endowed with full autonomy in relation to both 'nternal and external affairs. The process of political recognition of our independence was thus complete nearly 70 years ago.

However, there remained some legal and judicial ties between Australia and Britain. In 1931 the Parliament at Westminster enacted the Statute of Westminster. The preamble to that Statute acknowledged that the established constitutional position at that time was that no law made by the Parliament of the United Kingdom should extend to Australia unless Australia requested that to happen and consented to it happening. The Act declared the recognition by the Parliament at Westminster that the Parliament of Australia had full power to make laws having extra territorial operation' and that no Act of the Parliament of the United Kingdom passed af ter 1931 should extend or be deemed to extend to Australia unless we asked for it to do so and consented to it. The Statute of Westminster brought the legal position into alignment with the international political position.

The Statute of Westminster made provision for its adoption by the Australian Parliament, but the Australian Parliament took the view that this was unnecessary because Australia was already independent. The Parliament therefore did not do so at that time. However, during the depths of World War 11 jurisdictional questions were raised in relation to Australians in Australian ships serving in foreign theatres of war under British command. Possible legal problems were also seen in relation to the disciplining of British servicemen serving on foreign ships in foreign waters or foreign units under Australian command. This led the Australian Parliament to enact the Statute of Westminster Adoption Act, 1942 with effect from 3 September 1939.

The second reading speech in relation to this Act was made by Dr H V Evatt, the Federal Attorney General In his speech he makes it clear that Australia was already self-governing and endowed with full autonomy in relation to both internal and external affairs. The view he expressed was that by the time the Statute of Westminster was enacted in 1931 Australia and Britain were separate, that their relationship was one "of free co-operation in all matters of common concern"" and that the Parliament of Australia was in no sense legally inferior or subordinate to that of the United Kingdom. Australia had an independent international presence, exchanged Ministers with foreign countries, was able to declare a state of war, and there, he said, was "no legal obstacle preclud(ing) Australia from exercising its constitutional rights in relation to external or international affairs"." However, without the adoption of the Statute of Westminster, there were still some possible clogs on the rights of Australians to control their own domestic affairs. These, Dr Evatt stated unequivocally would be removed by the adoption of the Statute of Westminster. It was adopted and thereafter the position in relation to domestic law in Australia was brought into alignment with that in international law.

That left but one tie remaining, namely a tie in the judicial area-appeals to the Privy Council. In 1968 the Federal Parliament abolished appeals from the High Court to the Privy Council in constitutional and other Federal matters, as well as from the Supreme Courts of the Territories. In addition, appeals from all State Courts in constitutional and Federal matters were abolished but appeals were still able to be taken to the Privy Council from State Courts in wholly State matters and, under legislation of 1833, the Sovereign in Council could be petitioned to refer questions for the advisory opinion to the Privy Council. Appeals to the Privy Council from the High Court were abolished entirely in 1975 as the result of an Act introduced by the then Prime Minister, Mr Gough Whitlam. That left only appeals to the Privy Council from State Courts on purely State matters. The severance was thus almost complete, but not quite.

In 1985 The Australia Act 1986 was introduced and passed. It abolished all appeals to the Privy Council whether by virtue of any Act of the Parliament of the United Kingdom, a State, the Royal prerogative or otherwise.` From that time no appeal to the Privy Council has been competent "from or in respect of any decision of an Australian Court."

The severance was thus complete. Politically and legally Australia and its States were separate from the United Kingdom. In no way were they, or could they be said to be, dependent. They were not subject to the authority or jurisdiction of the Parliament of Westminster or to any court outside Australia. They were free and autonomous. In every sense of the word they were independent.

In is second reading speech, the then Attorney General, Mr Lionel Bowen, acknowledged this. He said:

The proposed legislation will terminate any powers that might remain in the United Kingdom to make laws having effect as part of Australian law.`

The preamble to the Australia Act is significant. It states the purpose of the Act. That purpose as stated by the Australian Parliament was:

To bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation.

By the Australia Act the Commonwealth Parliament and Australian law clearly acknowledged that any argument which might conceivably have been raised before the Act about lack of independence, would have no legs after the Act became law; it just would run. The States were given full power to make laws for their peace, order and good government even when those laws had extra- territorial operation. All questions of reservation or suspension of State Bills were swept away, 16 as was any right of the government of the United Kingdom to interfere with the Government of any State.` All powers and functions of the sovereign in respect of a State are thereafter exercisable only by the Governor of the State, unless the Queen was personally present in a State, in which case she is not precluded from acting. However, any advice to be tendered to the Sovereign in relation to a State is to be tendered by the Premier of that State?' And by convention, she of course is bound to act on that advice.

The Australia Act thus completed the move of the States from colonies to sovereign independent political entities who were part of a federation, subject only to the Commonwealth Constitution and to having no international functions or status. They are matters for the Commonwealth.

Thus those who seek to argue that Australia or its States or Territories are not independent must ignore history, political reality and law, both international and domestic. In every sense of the word, Australia is an independent and selfdetermining nation and changes to our Constitution must be justified by other arguments, not those which assert or infer that we are in some way tied to the apron strings of Britain or that we are in some way still of colonial status. Changing the Commonwealth Constitution will not enhance our independence, our sovereignty or our capacity for self determination. They are full and plenary.