Australia's Legal Independence

Australia's movement towards independence has been a gradual one; it is "the result of an orderly development - not Ð'... the result of a revolution" . It is difficult to say that Australia's independence came at one specific point in time. The question of if and when Australia became an independent nation is one that needs to be looked at over the scope of time and from a variety of angles: legal, cultural, and social. The emphasis placed by the case law on the changes which have occurred beyond those purely legal in nature necessitates this.

The majority in Sue v Hill (Gleeson CJ, Gummow & Hayne JJ) indicate that the development of Australia's independence culminated in the Australia Act in 1986 and was foreseen by constitutional scholars writing at Federation. An important question here though is what level of independence must be attained in order for "complete" independence to be considered to have been achieved. If a level of independence is required wherein no cultural, social, or expressly legally binding relationship exists between Australia and the United Kingdom (international law notwithstanding) then that has almost certainly not yet been achieved. However, Australia has attained a level of legal independence which for all practical purposes is complete and was so at the commencement of the Acts. This will be shown through an analysis of important historical events and changes in Australia's constitutional status.

The Starting Point Ð'- Pre-Federation

It has long been established that the British Common Law was received in Australia by the Doctrine of Reception in 1788. 1828 saw the formal adoption of British Statute Law into Australia but allowed for the two then-existing colonies (New South Wales and Van Dieman's Land) to develop their own laws as long as they did not contradict future British Laws made expressly for the colonies. It can be seen already at this early stage that the colonies (in a legal sense) did have some level of independence from Britain.

Due to some uncertainty as to the applicability of colonial laws under the 1828 statute and the stringency with which Imperial Law was applied in some jurisdictions, the imperial parliament passed the 1865 Colonial Laws Validity Act. This had the effect of strengthening the position of colonial legislatures, while at the same time restating their ultimate subordination to the Westminster Parliament.

Towards the later part of the 19th century there was an increasing desire (at least among the politicians) for the Australian colonies to federate. This was largely unsupported by the people at large but was propelled instead by economic concerns, particularly in relation to inter-colonial trade . This, coupled with the fact that only 60% of those eligible to vote in the referendum to accept the constitution actually did , would indicate that there was no great social movement desiring independence from Britain.

Federation Ð'- The Birth of a Nation?

Although, as shown above, it is clear that Australia was by no means independent prior to Federation in 1901, there are those who would argue that the "Australian nation" which Windeyer J talks about came into being with the federation of the old colonies into the new states of the Australian Commonwealth. Most notably, Murphy J argued in several cases that the Commonwealth of Australia became legally independent of Britain at Federation. Prima facie, this may appear accurate. The people of Australia had voted to become Ð''one indissoluble Federal Commonwealth' with its own legal framework, the Constitution, independent from the rest of the Empire. However, this view ignores the fact that, even aside from the above mentioned social attitudes, in a legal sense, Australia was still very much dependent upon Britain. The most obvious way in which this link is illustrated is by the fact that the Constitution itself was an Act of the British Parliament.

All three branches of government established under the Constitution still depended, to varying degrees, on the British state. The Union Steamship Case confirmed that the Commonwealth Parliament was still subject to the Colonial Laws Validity Act. This meant that the doctrine of repugnancy continued to apply and the British Parliament had the power to override an Act of the Commonwealth Parliament by paramount force. The Commonwealth Legislature was further restricted in its powers by he doctrine of extraterritoriality. The Merchant Service Guild Case confirmed that this doctrine applied to Commonwealth laws. This meant that the Commonwealth could only legislate with regards to disputes confined within Australian territorial limits. Any incidents which took place aboard Australian ships outside of Australian waters were beyond its scope. Through these two doctrines it can be seen that the sovereignty of the Australian parliament was severely impeded at Federation and not what we would associate with an independent state.

The Constitution prescribed that the executive power of the Commonwealth was vested in the Queen and exercisable by the Governor-General as her representative. This made the position of the Governor-General a very important one, especially early on in the Commonwealth's history when the Commonwealth Parliament had not yet been properly established. The first Governor-General's of Australia were appointed on the advice of the British Prime-Minister, with his Australian counterpart left largely powerless to stop the appointment of a succession of British noblemen to the position. It was not until 1930 that James Scullin was able to establish the right of the Australian Prime-Minister to advise the crown directly on this matter. This was established when Scullin was successful in ensuring that the ninth Governor-General of Australia was the Australian-born Isaac Isaacs. This is perhaps the best example of the emphasis placed by the by the majority in Sue v Hill on the changing status of the Australian Ministers. It is an example of the way in which the King, despite some protest, beings to act on the advice of His Australian, as opposed to His British, Ministers.

The Constitution was also not passed until it was certain that the right to appeal judicial decisions to the Privy Council was maintained. The Federal Judicature established by the Constitution was thus also envisaged as one which would continue to function under the supervision of the British. All of this meant that despite the apparent independence of the Australian Commonwealth, Britain continued to assert extensive influence and control over the legal workings of the fledgling nation.