Is Australia Independent from British Law?

In this essay i will examine the relationship between British and Australian law throughout our political history. The first settlement of British subjects and convicts, brought along with them their British laws and system of government. I will look

at the effect their system and laws had on our first formed governments and how it has helped mould our government of today.

I will examine if throughout the years, the progression of new laws and ‘acts’ eventually gave Australia full and true independence from British rule.

Paragraph 1-2 will explain how, from early settlment in the late 1700s, to the beginning of federation in 1901, the laws (legislation and the court systems) which were formed to accomodate the new fast growing colonies of Australia.

Paragraph 3 explains the evolution of the new colonies and the problems that arose from their seperate legal systems.This led up to’ Federation’ In Jan.1901, with the eventual joining of the colonies and the newly drafted Constitution.

Paragraph 4 tells how the Constitution changed the government into a federal government and what those changes entailed. Some of the first arguments and reasons from those who opposed federation and the new system are given.

Paragraph 5 shows how the Constitutution and federation established a federal system of government, with the one central government(Commonwealth)and regional governments(States).

Paragraph 6 states how the central government was divided into three seperate branches, all with seperate powers.It shows what those seperate powers entail and how they effect each branch.

Paragraph 7 shows how the Australia’s growing independence away from Britain led to new systems of government such as the ‘Statute of Westminster’ .This system however still allowed Britain several legislative and constitutional links to State government so the ‘Australia Act 1986’ was assented, rendering the Australian states as subject to Britain.

Paragraphs 8-10 shows how over the years, political parties were formed to voice both opposition
and approval to the remaining ties Australia still has to Britain. This led up to the question of ‘should Australia become a republic’ and a referendum was held in 1999.Arguments for and against Australia becoming a republic by both parties(ARM & ACM) are mentioned.

Paragraphs 11-12 describes events in which the office of the Governor-General had used its ‘reserve powers’ as written in the Constitution to effect the outcome of Australian political situations.

In 1787 the first shipment of convicts set sail for the newly discovered land known as New Holland, later renamed Australia .They arrived on January 26th 1788. The British Crown Colony settlement of New South Wales was established. As British settlers overseas, the the colonists were entitled by British tradition to govern themselves. ‘The first settlers also came with the authority of ‘The First Charter of Justice’, which provided for the establishment of civil and criminal courts'(Hudson & Sharp1993,p12). Later, seperate new colonies were run under the same system of law.

The main colony of New South Wales which was a penal colony established it’s own legislature in 1823 and formed the Legislative Council. The courts however practised like military tribunals rather than British courts and was often arbitrary as there was no trial by jurys. In 1814 a Second Charter of Justice established three new courts of civil juditure, The Governors Court, The Supreme court and the leuitenant Governors Court.(Hudson& Sharp1993,p27).

After a change of government in Britain colonial councils were told they could write up their own constitution for self government, local new laws were produced. Concerns over their validity however prompted the Imperial Parliament of Britain to pass the ‘Colonial Laws Validity Act 1865’ which defined the colonial parliaments constitutional limits. The ‘Act’ did state however that if any law passed were at odds with the Imperial Laws then the British laws would overide the Australian ones.(Colony and Empire 2003)

By the end of 1800’s the six colonies of Australia had their own government, parliament,courts and constitution. Because of self government there was a gradual growth of independence within the seperate colonies. ‘Each colony collected duties at their ports and border posts from the other parts of Australia’ (Waugh 1996 p22). Jealousies began between colonies and custom agreements began to break down. To result in better communication regarding trade, taxes,tarriffs and also to unite Australia in defence, conferences were held to establish steps towards the six colonies joining together to become a commonwealth. The Australian Constitution was drafted and the question of federation was put to the people through a referendum. January 1st 1901 was the first official day of federation , the six colonies came together and formed an independent nation state and then became a country in their own right.

Eventhough politicians of the day said that the new federation in 1901 would be the birth of our nations independence, opposers argued that the six self governing colonies joining together to become ‘one big colony’ was to make administration easier for the British Government. After all it was approved by the United Kingdom and established by United Kingdom legislation’ The Commonwealth Constitutional Act’. “Even when these colonies federated it was believed that Australia was still not a true nation. Economically, strategically and culturally Australia was defined as part of the British Empire”(Colony and Empire 2003).

“The Australian Constitutution established a federal system of government. It is for this reason that the establishment of the Commonwealth is often referred to as ‘federation’. Under a federal system the powers are distributed between a central government and regional governments.

In Australia distribution is between the Commonwealth and six states.”..Constitution 2003
Matters not assigned to the Commonwealth are the responsibility of the State governments.

The Constitution defined the responsibilities of the federal government, and set out the powers of government in three seperate chapters I, II and III. These are sometimes known as ‘The Three Arms’ of the government.

* Legislature (Chapter I), simply known as parliament and has the power to make laws;
The Commonwealth government compromises two seperate chambers,
The House of Representatives (or,the lower house).
The Senate (or,the upper house).

* Excecutive (Chapter II), is the administrative arm of the government and has the power to carry out and enforce the laws;

* Judiciary (Chapter III), is the legal arm of the government and is independent of the Excecutive and the Legislature. It is the role of the judiciary to enforce Australias laws.(Australian Government n.d.).

All ‘Three Arms’ have seperate powers known as the ‘seperation of powers’. The principle of this is to prevent an oppressive government as all three powers should be held by seperate bodies, Excecutive, Legislative and Judicial, as this will make them accountable to each other. It also states that members of the Excecutive must also be members of the legislature..(Waugh 1996, p62).

Australia adopted ‘TheWestminster Minster Act’ an Act of British Parliament in 1931 which, set out as law the independence of the Governments of Australia. This defined the evolving independence from Britain. This political system is known as ‘responsible government’. Eventhough the Statute of Westminster gave a lot more independence to Australia at the national level the states preferred not to have the ‘Act’ apply to them and still ruled under the ‘Colonial Laws Validity Act’, which meant continued application of laws repealed in Britain however ‘ The Australia Act of 1986’ ended this..(Colony and Empire 2003). With the passing of the ‘Australia Act of 1986’ it was stated that “the United Kingdom Parliament now has no legislative authority whatsoever in respect of Australia”(2003), but did Australia truly became independent of British law ? The Constitution states in section 61 that ” the excecutive power of the Commonwealth is vested in the Queen and is exercisable by the Governor General as the Queens representative”(Waugh 1996 p46).

Disputes regarding the ties between Australia and the British Monarchy resurfaced in 1975 after the then Governor-General, Sir John Kerr dismissed the Australian government.

The ‘Australian Republican Movement’ argued for Australia to officially become a Republic “To continue with a distant monach in our highest office is not an optimal situation for Australia and now is the time to begin to move towards a new referendum to replace an outdated institution with an Australian Head of State”..(Warhurst 2006).

The new Head of State unlike the British Monarch, would be an Australian citizen who resides in Australia and whose loyalty and allegience lies with this country. They also call for ammendments to be made to the Australian Constitution. “It’s about giving Australia a Constitution that is relevant to the Australia today and one that provides appropriate symbols of today’s Australia rather than an Australia of over a century or more ago”..(2001).

Traditionalists however better known as ‘Australians for Constitutional Monarchy’ disagree with their argument and say that ” In 1901, Australia lived under the British Crown and the Governor-General was a British gentleman representing the British Government but now its the Australian Crown and the Governor-General is an Australian representing the Crown in the peoples name “..(Australian for Constitutional Monarchy 2007).

In 1993 a Republic Advisory Committee was formed which resulted in the published report named “An Australian Public”, A Constitutional Convention was held in old parliament house in 1998 and questions were recomended to be put to referendum. In 1999 Australia a referendum was held regarding Australia becoming a republic. The two main political parties at the forefront of the debate were ‘The republican Movement’ (for) and ‘Australians for Constitutional Monarchy'(Against). The main target for the republicans was the removal of the Queen as Head of State and the Governor General as her representative. Monarchists believed there was no reason to change the system which had served us so well ,as the Constitution was the heart of our Australian identity.This referendum ended with a resounding ‘No’ vote with 72% voting against Australia becoming a republic.

Republicans argue that following the Federation of Australia in 1901, the role of each Governor General was as ” the principal of the British Government in Australia ,and as such was a protector of British imperial interests”..(Cowen 1993). This was shown on several occasions as The Governor General tried to look after the interests of the British Empire and and acted against Australia’s national interests such as in :

* 1901- put pressure on Australian governments to change immigration laws.

* 1903- withheld documents from the Australian Government.

* 1909- lobbied for Australia to donate a battleship to Britain.

* 1909- pressuring the Australian Government to in times of war to place the Australian Navy under British control.

* 1918- encouraged British Government to extract more debt repayments than Australia was offering..(1993).

It was not until 1926 that an Imperial Conference resolved that the role of Governor General was simply to be a” representative to the crown” and not ” the representative of his Majesty’s Government in Great Britain”..(Cunneen 1983).

One of Australias most significant political events involving the Governor General was the dismissal of theWhitlam Government in November ’75’, known as ‘The Constitutional Crisis’. This event is used as one of the main arguments used by the ‘ Republican Movement’.

Was the Governor wrong however? Royalists say it was appropriate to dismiss the government as it was consistent with the ‘convention’ that a Prime Minister who cannot obtain supply should either seek a general election or be dismissed..(Australians for Constitutional Monarchy 2007). However the dismissal of the government also breached the convention, that a person who retains majority support of the House of Representatives, as Gough Whitlam did, is entitled to remain Prime Minister”..Constitution 2003.

Conclusion:

The question of whether Australia should become a republic has been debated since before 1901. The most recent debate on the subject brought about a referendum in 1999.

The republicans were given free hand to draft a new constitutional system, but Australians could have been forgiven for believing that the only reason to make the change would be to remove the British Monarchy as Head of State. Today the main role of the Governor General is mostly ceremonial . The Australian Constitution does not specifically define the reserve powers of the Governor General , however if Australia was to become a republic, then it would be crucial that the questions of reserve powers, of the Head of State, be questioned. Monarchists argue that we should not change the Constitution at all and state, “we have evolved from a penal colony to an independent country under the Crown.We were founded under the Crown; we received self government under the Crown and we agreed to unite in our Federal Commonwealth under the Crown. We then became fully independent under our seperate Australian Crown, which remains above politics”.(Australian for Constitutional Monarchy 2007).

Until the 1980s, the British Government , Monarchy and courts still maintained some jurisdiction over Australia; and some pre-1901 British Laws remain in effect in the country today.

The “Australian Constiution”, was, is and remains conditional to the first 8 covering clauses of that’ Act’, a current ‘Act’ of domestic law of the United Kingdom Parliament.(Waugh 1996).

I think the removal of the Monarchy in todays climate would have no effect on Australian law , so if the subject of becoming a republic is to be seriously taken into consideration then a full ammendment of the ‘Constitution’ could be the only action liable.

References:

Australian Constitution Act 1900 (Commonwealth) Retrieved Nov 13,2007, from http://www.aph.gov.au/house/index.htm…

Australian Constitution Act 2003,(Commonwealth).

Australians for a Constitutional Monarchy 2007.Retrieved Nov,13 from http://www.norepublic.com.au…

Australian Government, n.d., About Australia:Commonwealth Government. Retrieved Nov 17 from http://www.australia.gov.au….

Cowen, Z 1993, ‘The Office of Governor-General’ in J Arnold, P Spearritt & D walker(eds),Out of Empire: The BritishDominion of Australia, Mandarin, Port Melbourne.

Cunneen, C 1983, Kings Men,Governors-General from Hopetown to Issacs, George Allen & Unwin, North Sydney.

Hudson,W. J & Sharp M. P 1993, Australian Independence:Colony to reluctant Kingdom,University Press, Melbourne.

Ross, T 2005, ‘Australias Subservient Relationship With Britain’, Colony and Empire,sect 1,2,&4. Retrieved Nov 17. 2007. from Australian Nationlism Information Database…

Warhurst, J 2006, ‘Elizabeth: The Last Australian Monarch?’, Canberra Times,16 June. Retieved Nov 13, from http://www.republic.org.au…

Waugh, J 1996, The Rules, An Introduction to the Australian Constitution, University Press, Melbourne.

All Rights Reserved Theme by 404 THEME.