An Australian Constitution? WHAT NEXT?

Wayne R. Levick, B.A., LL.B.
John R. Lamont, M.B., B.S.(Syd),M.Bus.(Acc & Fin),GCFS(UTS)

Differing legal opinion cites the establishment of Australia as an independent sovereign nation over a wide range dates. One former Governor-General recently proposed this to be at Federation, with many other texts preferring the less controversial "gradual evolution during this century" explanation. 

Contrary to common domestic legal opinion, Australia become an independent sovereign nation following Mr William Morris Hughes, Prime Minister and Commonwealth Attorney-General, together with Sir Joseph Cook, signing The Treaty of Peace at Versailles, in June 1919, which included the Covenant of the League of Nations, along with many other important documents of international law. Particular attention should be paid to clauses I, X, XVIII and XX of the Covenant.

This is not an isolated opinion. The Federal Parliamentary Senate's Legal and Constitutional References Committee's November 1995 Report, Trick or Treaty? Commonwealth Power to make and Implement Treaties, states at para 4.13:

"This admission to the League and the International Labour Organisation involved recognition by other countries that Australia was now a sovereign nation with the necessary 'international personality' to enter into international relations" refer here (H.V. Evatt, The Royal Prerogative, Law Book Co., 1987 p 151)

See also: J.G. Starke, "The Commonwealth in International Affairs" in R.Else-Mitchell (ed.), Essays on the Australian Constitution, 2nd ed.,Law Book Co., Sydney, 1961, 343 at 349.

R. Stewart, Treaty Relations of the British Commonwealth of Nations, MacMillian Co., New York, 1939:pp. 152-3,
being the statement made by the British Prime Minister, Mr Lloyd George, at the 1921 Prime Ministers Conference.
See also the reference to the Imperial War Conference in 1917 in para 4.12.

Whenever courts are faced with statutes that are ambiguous or confusing in their language or construction and there is a need to interpret and apply these statutes, the courts go behind the legislation and look at the intent of the legislators. The judiciary goes to the explanatory memorandum, and even the Parliamentary debate surrounding the legislation.

I would urge you to read the Federal Parliamentary Hansard for the House of Representatives, where Mr. Hughes commences the debate on the ratification of The Treaty of Peace, on September 10th, 1919. In particular, I draw your attention to page 12169.

If confirmation of this change in Australia's status from a "colony" to being "accepted fully into the comity of the nations of the whole world" is required, then the Balfour Declaration (1926), Report of the Royal Commission on the Constitution (1929) (Appendix C "The Report of the Inter-Imperial Relations Committee, 1926"), and The Charter of the United Nations (Article 2) make interesting reading.

The Commonwealth of Australia Constitution Act passed through the UK Parliament in July 1900, to commence as law in Australia on the first of January, 1901. Since the people of Australia have only ever had the right to change Sections 1 to 127 of clause 9 of this Act and it was recently re-confirmed by the High Court that clause 5 of this Act still operates (see Joosse v ASIC (1998) 159 ALR 260 ), then it follows that clauses 2, 6 and 8 remain law in Australia.

This implies that British Colonial law still operates in Australia and that Australia is a self-governing colony of the United Kingdom. But, the High Court has recently ruled that Great Britain is a foreign power and that the UK Parliament cannot have any effect on the government of the Commonwealth of Australia (Sue vs Hill HCA 30 of 1999 ).

Or view PDF: Sue vs Hill HCA 30 of 1999

Hence, if British Colonial law continues to operate in Australia, it would constitute a clear breach of international law, along with the duties and responsibilities of both the Australian and United Kingdom governments, as both were foundation members to the League of Nations and the United Nations, and as such were bound by the Covenant and the Charter, respectively.

Another aspect of law making in Australia which requires closer examination is the process of the Westminster system of granting of royal assent to Bills after they are passed by the relevant Parliament, whether it be Federal or State. That assent being given by the Governor-General, or Governor, respectively, who are appointed by the British monarch as their representative.

Currently, that power resides with HM Queen Elizabeth II, but the Royal Styles and Titles Act (1973) (Cth) bestows the title of Queen of Australia on Her Majesty, and therefore her ability to appoint these vice-regal representatives is erroneous because:

1. There is no mention of Queen of Australia in The Commonwealth of Australia Constitution Act 1900 (UK).

2. Succession to the throne of the United Kingdom is regulated by statute, namely, the Act of Settlement 1701 (Imp) and the Bill of Rights 1689 (Imp).

Hence, Queen Elizabeth II is Queen of Australia only by the allowance of the Parliament of the United Kingdom.

Click here for a reference to the above.

The much vaunted Statute of Westminster Act 1931 (UK) was a thinly veiled attempt to patch up a broken legal system for the Dominions. Since it was designed to operate beyond the shores of the UK, it was a requirement under Art. XVIII of the Covenant of the League of Nations for it to be registered with the League to be valid. It never was registered, so it never became valid! Hence, any subsequent adoption of it by Australia in 1942 is equally invalid.

Ditto for the Australia Acts 1986 (both UK and Cth)!

In short, Australia is an independent, sovereign nation. At Federation it was a "self-governing colony". Why hasn't the legal profession been able to pin down precisely when that status changed? Are protected interests at risk?

Australia is a strange place. Only British subjects were allowed to vote on the "Australian" Constitution. The majority of Australian born residents were precluded from voting. Our Head of State is appointed by a foreign Parliament. The Politicians over the past 80 years have not been prepared to concede, let alone rectify, the significant legal and constitutional problems outlined above. 

It is a shame that in the young, vibrant community of Australia "it was so easy for so few, for so long" to pull the collective wool over our complacent eyes, and that members of the legal profession were the easiest of all to fool.

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