Australian Constitutional History

The Emergence of the Commonwealth of Australia

After European settlement Australia was originally a number of separate British colonies, eventually six in all. These colonies had their own laws, and applied customs duties at the borders between them, which was a significant impediment to Australia's overall economic development. The movement for Federation developed in the late nineteenth century, proposing that Australia's six colonies join together as one federation of several states and territories (it was envisaged that New Zealand might join). A constitutional convention was called, which adopted a constitution based on a combination of the British (monarchy, parliamentary system of Government) and American (federalism) and other models. This constitution was then approved by the voters in each of the six states. (At the time only men could vote.) It was then passed as an act of the British Parliament, the Commonwealth of Australia Constitution Act 1900. The act entered into force on January 1, 1901, at which point the Commonwealth of Australia came into being.

The Commonwealth is Born

The establishment of the Commonwealth of Australia is generally taken as the date of Australia's independence from the United Kingdom; but matters are more complicated than that. The Constitution provided the Commonwealth with power to engage in foreign affairs, and to raise its own army. But the United Kingdom still retained the power to engage in foreign affairs on behalf of Australia, and to make laws for it. In the early years Australia continued to be represented by the United Kingdom as part of the British Empire at international conferences.

From a United Empire Crown to a Shared Monarch

A fundamental change in the constitutional structures of the British Commonwealth (formerly the British Empire) did occur, however in the late 1920s. Under the British Royal and Parliamentary Titles Act[?], 1927 which implemented a decision of an earlier Commonwealth conference, the unified Crown that that heretofore been the centre point of the Empire was replaced by multiple crowns worn by a shared monarch. Before 1927, King George V reigned as king in Australia, New Zealand, Canada, the Irish Free State, South Africa, etc, each of these states in effect as dominions amounting to a subset of the United Kingdom. After 1927, he reigned as King of Australia, New Zealand, Ireland, South Africa, etc., The form of use in the royal title as issued by King George V [1] (http://www.heraldica.org/topics/britain/britstyles.htm#1927) did not mention the dominions by name, the only dominion mentioned being 'Ireland' which changed from being referred to as Great Britain and Ireland to Great Britain, Ireland, indicating the it was no longer part of the United Kingdom but a separate state of which the monarch was now directly the head of state as, rather than through linkage with Great Britain. Though unnamed, excepted through reference to the 'British Dominions beyond the Seas', the ground-breaking innovative move shattered the previous concept of the shared monarch to one of multiple monarchies, all held by the one monarch.

Though this principle was implicit in the Act and the King's new titles, and came out of a Commonwealth Conference, neither the British government nor the dominion governments seemed initially to grasp its significance. So while the Irish immediately put the priniciple into effect by assuming the right to select their own governor-general and to demand a direct right of audience with the King (excluding British ministers), other dominions were much slower to go down this path, and when they did so they were faced with determined though ultimately futile attempts to block such evolution in London.

Whereas before 1927 it was correct in law to talk about the British monarch reigning in the dominions, after 1927, there was technically a 'King of Australia', etc., even if that title was never used formally, with the only link being that that monarch was British and resident outside the Commonweath of Australia. Curiously, while the Irish asserted the title 'King of Ireland' by having King George V sign an international treaty on behalf of his Irish realm as early as 1931 (where he was formally advised by the Irish Minister for External Affairs who formally 'attended' His Majesty, with no British minister present), the formal title 'Queen of Australia' was only adopted through the Royal Style and Titles Act [2] (http://www.statusquo.org/royalstyle) enacted by the Parliament of Australia in 1973.

The Statute of Westminster

The next major constitutional change came about with the act of the British Parliament known as the Statute of Westminster. This was associated with the transformation of the British Empire into the British Commonwealth. The UK government recognized Australia (and its other dominions, such as Canada and New Zealand) as independent, and agreed that the British Government and Parliament would only make laws for them if they specifically requested it, with the various dominions having the legal right to adopt and amend past legislation enacted in Westminster. (This allowed the Irish Free State, for example, to remove the requirement that the then Irish constitution be limited by the contents of the Anglo-Irish Treaty. Once that was removed, the Oath of Allegiance, appeals to the Privy Council, Senate, governor-generalship and Crown were all abolished.)

This power to request the British Parliament to make laws for Australia was used on several occasions; primarily in order to enable Australia to acquire new territories. The latest time it was used was the Australia Act 1986. The Australia Act effectively terminated the ability of the British Parliament or Government to make laws for Australia or its States, even at their request; and provided that any law which was previously required to be passed by the British Parliament on behalf of Australia could now be passed by Australia and its States by themselves (theoretically some elaborate multi-stage process might change this, but this is only of academic interest). It also removed the right of the Monarch personally to exercise his or her powers in the States, except when personally present in them. And it severed the last judicial link with the United Kingdom, by abolishing the right of appeal to the Judicial Committee of the Privy Council.

An Evolving Independence

Thus the independence of Australia from the United Kingdom, rather than occurring at a single event, has, in legal terms, been a continuing process. Other more recent developments include the decision by the High Court of Australia that holding British citizenship is being subject to a foreign power (thus making dual British Commonwealth/Australian citizens ineligible for election to the Federal Parliament, in a manner inconsistent with the grandfathering method of phasing out non-Australian British Commonwealth voters from the electorate).

One link with the United Kingdom still remains however: Australia and its states, though separate constitutional monarchies (each state is formally a separate monarchy), share the same monarch with the United Kingdom. In practice, the monarch has no real power in Australia: he or she appoints the Governor General and the state governors; but only on the advice of a Prime Minister or Premier.

For years, opinion polls have suggested that the majority of Australians favours severing the last ties with the monarchy. In November 1999 a republican referendum was put to the people, but to the surprise of many, defeated. (See Australian republicanism.)

Also see Constitutional law