Statute of Westminster Adoption Act 1942

The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted sections 2–6 of the Statute of Westminster 1931, an Act of the Parliament of the United Kingdom enabling the total legislative independence of the various self-governing Dominions of the British Empire. With its passage, Westminster relinquished nearly all of its authority to legislate for the Dominions, effectively making them de jure sovereign nations.

With the passage of the Adoption Act, the British Parliament could no longer legislate for the Commonwealth without the express request and consent of the Australian Parliament. The act received Royal Assent on 9 October 1942, but the adoption of the Statute was made retroactive to 3 September 1939, when Australia entered World War II.

The Act is more important for its symbolic value than for the legal effect of its provisions. While Australia's growing independence from the United Kingdom was well accepted, the adoption of the Statute of Westminster formally demonstrated Australia's independence to the world.

Statute of Westminster Adoption Act 1942
Coat of Arms of Australia
Parliament of Australia
An Act to remove Doubts as to the Validity of certain Commonwealth Legislation, to obviate Delays occurring in its Passage, and to effect certain related purposes, by adopting certain Sections of the Statute of Westminster 1931, as from the Commencement of the War between his Majesty the King and Germany
Royal assent9 October 1942
Commenced9 October 1942 (retroactive to 3 September 1939)
Amended by
1986 (minor)
Related legislation
Australia Act 1986
Status: Current legislation

Background

Australia's progression to effective independence was gradual and largely without incident.

New South Wales was founded as a British colony in Sydney in 1788. Other colonies split away from New South Wales or were separately established over the Australian continent in the ensuing decades. The colonies became self-governing during the second half of the 19th century, starting with Victoria in 1852, although well before this time, all of the colonies had non-elected Legislative Councils to advise their respective Governors on matters of administration.

When the Commonwealth of Australia was formed with federation of the six colonies in 1901, following royal assent of the Commonwealth of Australia Act 1900, it became classified as a Dominion of the British Empire. This accorded Australia somewhat greater independence, though it was legally a self-governing British colony. After the end of World War I, each of the Dominions (including Australia, Canada, New Zealand and South Africa but not Newfoundland) independently signed the Treaty of Versailles, but under the collective umbrella of the British Empire. Each Dominion also became a founding member of the League of Nations in its own right. This was an important international demonstration of the independence of the Dominions.

The Statute of Westminster

During the 1926 Imperial Conference, the governments of the Dominions and of the United Kingdom endorsed the Balfour Declaration of 1926, which declared that the Dominions were autonomous members of the British Empire, equal to each other and to the United Kingdom. The Statute of Westminster 1931 gave legal effect to the Balfour Declaration and other decisions made at the Imperial Conferences. Most importantly, it declared that the Parliament of the United Kingdom no longer had any legislative authority over the Dominions. Previously, the Dominions were legally self-governing colonies of the United Kingdom, and thus had no legal international status. The Statute made the Dominions de jure independent nations.

The Statute took effect immediately over Canada, South Africa and the Irish Free State. However, Australia, New Zealand and Newfoundland had to ratify the Statute through legislation before it would apply to them. Canada also requested certain exemptions from the Statute in regard to the Canadian Constitution.

Australian politicians initially resisted ratification of the Statute. John Latham, the Attorney-General and Minister for External Affairs under Prime Minister Joseph Lyons, was particularly opposed to ratifying the Statute, because he thought it would weaken military and political ties with the United Kingdom. Latham had attended both the 1926 Imperial Conference and the 1919 Paris Peace Conference, and he had much experience in international affairs. He preferred that the relationship between the United Kingdom and the Dominions not be codified in legislation.

However, other politicians supported the Statute, and the new independence it gave to Australia.

In 1930, shortly before the Statute was enacted, the Labor Prime Minister James Scullin recommended Sir Isaac Isaacs (then the Chief Justice of Australia) as the Governor-General of Australia, to replace Lord Stonehaven. This was a departure from previous practice whereby the British monarch, acting on the advice of the British prime minister, would offer the Australian prime minister a number of choices for the position. However, the Australian prime minister, acting in line with the principles of the Balfour Declaration permitting Dominion governments to look after their own affairs, insisted on the appointment of Isaacs. Although King George V disapproved of Isaacs, the 1930 Imperial Conference upheld the procedure under the declaration, and so the King appointed Isaacs. The other Dominions supported this demonstration of political independence.

Adoption

1937 bill

For a decade after its creation, adoption of the Statute was not seen as a priority for Australian governments. In June 1937, the Lyons Government introduced the Statute of Westminster Adoption Bill into the parliament, where it passed its second reading in the House of Representatives. However, the bill lapsed when parliament was dissolved prior to the 1937 federal election. The government promised to reintroduce the bill in the 1937 speech from the throne, but no further action was taken. The issue was occasionally raised in parliament, but adoption was seen as non-urgent.[1]

In introducing the 1937 bill, Attorney-General Robert Menzies said that adopting the Statute had only "relatively minor advantages" and would alter Australia's existing constitution existing constitutional arrangements "to a very trifling extent". He observed that "the real and administrative legislative independence of Australia has never been challenged since the Commonwealth was created", and said the primary reason for adopting the Statute was to bring Australia "into line uniformly with the other dominions" who had already adopted it.[2]

1942 bill

John Curtin, who became prime minister eight weeks before the Imperial Japanese Navy's attack on Pearl Harbor, was finally prompted to adopt the Statute in 1942 after the Fall of Singapore and the sinking of HMS Prince of Wales and HMS Repulse. Prior conservative governments had asserted that British military forces would be able to protect Australia, but Curtin, along with External Affairs Minister Dr H. V. Evatt, thought that focusing on an alliance with the United States would be more valuable.

Before the 1940s, the United Kingdom had managed Australia's foreign relations as a matter of course. Curtin's decision to formally adopt the Statute of Westminster in late 1942 was a demonstration to the international community that Australia was an independent nation.

The immediate prompt for the adoption of the Statute of Westminster was the death sentence imposed on two homosexual Australian sailors for the murder of their crewmate committed on HMAS Australia in 1942. Since 7 November 1939, the Royal Australian Navy had operated subject to British imperial law, under which the two men were sentenced to death. It was argued that this would not have been their sentence if Australian law had applied, but the only way for the Australian government to get the sentences altered was by directly petitioning the King, who commuted them to life imprisonment. Adopting the Statute of Westminster, so that Australia became able to amend applicable imperial law, avoided a potential repetition of this situation. The men's sentences were later further reduced.[3][4]

Provisions of the Act

The act had just three sections, one setting out the short title, one declaring that the Act was to come into operation as soon as it received Royal Assent, and one declaring that the Statute of Westminster had been adopted, and was considered to have had effect since 3 September 1939, the beginning of World War II.[5] For a simple Act, it had a significant effect.

Section 2 of the Statute of Westminster abrogated the effect of the Colonial Laws Validity Act of 1865, and adopting it meant that laws made by the Parliament of Australia which were repugnant to British laws were no longer invalid. Section 4 of the Statute provided that laws made by the Parliament of the United Kingdom would only have effect on a Dominion at the request of the government of that Dominion.

Section 5 of the Statute removed British control over merchant shipping in Australian waters. Section 6 removed the British monarch's power to reserve certain legislation for his or her own consideration,[6] rather than simply allowing the Governor-General to give the Royal Assent on the monarch's behalf.

References

  1. ^ Lindell, Geoffrey (2001). Parliament: The Vision in Hindsight. Federation Press. pp. 63–64.
  2. ^ Menzies, Robert (25 August 1937). "Statute of Westminster Adoption Bill 1937: Second Reading". Hansard – Parliament of Australia.
  3. ^ Clark, Chris (2009). "The Statute of Westminster and the murder in HMAS Australia, 1942" (PDF). Australian Defence Force Journal (179): 18–29. Retrieved 24 January 2017.
  4. ^ R v Bevan [1942] HCA 12; (1942) CLR 452.
  5. ^ "Parliamentary Handbook: Constitution – Statute of Westminster Adoption Act 1942". Parliament of Australia. Archived from the original on 20 May 2008. Retrieved 6 May 2008.
  6. ^ "Colonial Courts of Admiralty Act 1890 (UK), s 4". National Archives (UK). Retrieved 24 January 2017.
Australia Act 1986

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth (i.e. federal) Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. The Acts came into effect simultaneously.

The Australia Act (Cth and UK) eliminated the remaining possibilities for the UK to legislate with effect in Australia, for the UK to be involved in Australian government, and for an appeal from any Australian court to a British court.

Australian Constitution (Public Record Copy) Act 1990

The Australian Constitution (Public Record Copy) Act 1990 is an Act of the Parliament of the United Kingdom, passed in 1990. The purpose of the Act was to allow the Commonwealth of Australia to retain the original copy of the Commonwealth of Australia Constitution Act 1900 (Imp), which the British government had loaned for the celebration in 1988 of the bicentenary of British settlement in Australia.

The Australian government had made a formal request to Queen Elizabeth II for the Act to remain in Australia, as part of the nation's history. However, under the UK's Public Records Act 1958, the original copy of every Act of Parliament had to remain in the Public Record Office in London. Thus the British Parliament passed a new Act to exempt this copy from that requirement, so as to allow the copy to remain with Australia as a gift.

The copy is now displayed in the Federation Gallery at the National Archives of Australia, in Canberra.

Australian Republic Movement

The Australian Republic Movement (ARM) is a non-partisan member-based organisation campaigning for Australia to become an independent republic with an Australian as head of state. Australian constitutional law has provided since Federation in 1901 that the monarch of the United Kingdom is also the monarch of Australia.

The Australian monarch is generally understood to be the head of state, although regal functions are ordinarily performed by a Governor-General and state Governors.

Autonomous Region of Bougainville

Bougainville ( BOH-gən-VIL), officially the Autonomous Region of Bougainville and previously known as North Solomons, is an autonomous region in Papua New Guinea. The largest island is Bougainville Island (also the largest of the Solomon Islands archipelago). The region also includes Buka Island and assorted outlying nearby islands including the Carterets. The interim capital is Buka, though it is expected that Arawa will become the permanent capital in the future. The population of the region is 249,358 (2011 census).

Bougainville Island is ecologically and geographically part of the Solomon Islands archipelago but is not politically part of the nation of Solomon Islands. Buka, Bougainville, and most of the Solomons are part of the Solomon Islands rain forests ecoregion. The region's biodiversity is heavily threatened by mining activities, mostly conducted by foreign investors.

Chapter II of the Constitution of Australia

Chapter II of the Constitution of Australia establishes the executive branch of the Government of Australia. It provides for the exercise of executive power by the Governor-General advised by a Federal Executive Council.

Colonial Laws Validity Act 1865

The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws".

The purpose of the Act was to remove any apparent inconsistency between local (colonial) and British ("imperial") legislation. Thus it confirmed that colonial legislation (provided it had been passed in the proper manner) was to have full effect within the colony, limited only to the extent that it was not in contradiction with ("repugnant to") any Act of Parliament that contained powers which extended beyond the boundaries of the United Kingdom to include that colony. This had the effect of clarifying and strengthening the position of colonial legislatures, while at the same time restating their ultimate subordination to the Westminster Parliament.

Until the passage of the Act, a number of colonial statutes had been struck down by local judges on the grounds of repugnancy to English laws, whether or not those English laws had been intended by Parliament to be effective in the colony. This had been a particular problem for the government in South Australia, where Justice Benjamin Boothby had struck down local statutes on numerous occasions in the colony's Supreme Court.By the mid-1920s, the British government accepted that the dominions should have full legislative autonomy. Accordingly, the imperial Parliament passed the Statute of Westminster, which repealed the application of the Colonial Laws Validity Act 1865 to the dominions (i.e., Australia, Canada, the Irish Free State, New Zealand, Newfoundland, and the Union of South Africa).

The Statute of Westminster took effect immediately in Canada, the Irish Free State and South Africa. Australia adopted the Statute in 1942 with the passing of the Statute of Westminster Adoption Act 1942, with retroactive effect to 3 September 1939, the start of World War II. The Colonial Laws Validity Act 1865 continued to have application in individual Australian states until the Australia Act 1986 came into effect in 1986.

New Zealand adopted the Statute of Westminster in 1947.

Newfoundland never adopted the Statute of Westminster. Instead, facing grave financial difficulties as a result of the Great Depression, Newfoundland gave up responsible government in 1934. The Colonial Laws Validity Act continued to apply to Newfoundland, which was from then on ruled by an appointed Governor and Commission of Government until, in 1949, Newfoundland joined Canada as its 10th province.

Elsewhere, the Colonial Laws Validity Act remains in force, and helps to define the relationship between Acts of Parliament and laws passed in self-governing British territories, as well as the legality of decisions made by territorial legislatures and governments. The power to amend the Colonial Laws Validity Act rests with the Parliament of the United Kingdom.

Constitution of Australia

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

The Commonwealth of Australia Constitution Act 1900 (Imp) was given Royal Assent on 9 July 1900, was proclaimed on 17 September 1900, and entered into force on 1 January 1901. Even though the Constitution was originally given legal force by an Act of the United Kingdom parliament, the Australia Act 1986 removed the power of the United Kingdom parliament to change the Constitution as in force in Australia, and the Constitution can now only be changed in accordance with the prescribed referendum procedures in Section 128.

Other pieces of legislation have constitutional significance for Australia. These are the Statute of Westminster, as adopted by the Commonwealth in the Statute of Westminster Adoption Act 1942 (retroactive to 1939), and the Australia Act 1986, which was passed in equivalent forms by the United Kingdom Parliament and the Australian Federal Parliament (using legislative powers conferred by enabling acts passed by the Parliaments of every Australian state). The Statute of Westminster Adoption Act is often regarded as the point at which Australia became de jure an independent nation, while the Australia Act for all practical purposes severed the remaining constitutional links between Australia and the United Kingdom. Although the monarch of the United Kingdom remains also the monarch of Australia, today this person, currently Queen Elizabeth II, acts in a distinct capacity as monarch of each.Authority to interpret the Constitution lies exclusively with federal courts: with the Federal Court of Australia and, finally, the High Court of Australia.

Entrenched clause

An entrenched clause or entrenchment clause of a basic law or constitution is a provision that makes certain amendments either more difficult or impossible to pass, making such amendments inadmissible. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party.

Once adopted, a properly drafted entrenchment clause makes some portion of a basic law or constitution irrevocable except through the assertion of the right of revolution.

Any amendment to a basic law or constitution which would not satisfy the prerequisites enshrined in a valid entrenched clause would lead to so-called "unconstitutional constitutional law", that is, an amendment to constitutional law text that would appear to be constitutional law by its form, albeit unconstitutional due to the procedure used to enact it or due to the content of its provisions.

Entrenched clauses are, in some cases, justified as protecting the rights of a minority from the dangers of majoritarianism. In other cases, the objective may be to prevent amendments to the basic law or constitution which would pervert the fundamental principles enshrined in it. However, entrenched clauses are often challenged by their opponents as being undemocratic.

Eternity clauses are a type of entrenched clause.

Governor of New South Wales

The Governor of New South Wales is the viceregal representative of the Australian monarch, Queen Elizabeth II, in the state of New South Wales. In an analogous way to the Governor-General of Australia at the national level, the Governors of the Australian states perform constitutional and ceremonial functions at the state level. The governor is appointed by the queen on the advice of the premier of New South Wales, for an unfixed period of time—known as serving At Her Majesty's pleasure—though five years is the norm. The current governor is retired judge Margaret Beazley, who succeeded David Hurley on 2 May 2019.

The office has its origin in the 18th-century colonial governors of New South Wales upon its settlement in 1788, and is the oldest continuous institution in Australia. The present incarnation of the position emerged with the Federation of Australia and the New South Wales Constitution Act 1902, which defined the viceregal office as the governor acting by and with the advice of the Executive Council of New South Wales. However, the post still ultimately represented the government of the United Kingdom until, after continually decreasing involvement by the British government, the passage in 1942 of the Statute of Westminster Adoption Act 1942 (see Statute of Westminster) and the Australia Act 1986, after which the governor became the direct, personal representative of the uniquely Australian sovereign.

History of Australia (1901–45)

The history of Australia from 1901–1945 begins with the federation of the six colonies to create the Commonwealth of Australia. The young nation joined Britain in the First World War, suffered through the Great Depression in Australia as part of the global Great Depression and again joined Britain in the Second World War against Nazi Germany in 1939. Imperial Japan launched air raids and submarine raids against Australian cities during the Pacific War.

Independence from the United Kingdom

Independence from the United Kingdom may refer to any one of the many campaigns (both historical and current), events, documents and legislation regarding countries that have gained independence from the United Kingdom or countries which aspire to do so.

These include:

Afghani independence:

Anglo-Afghan Treaty of 1919

American independence:

American Revolution, during the 1770s

United States Declaration of Independence, 1776

Treaty of Paris (1783)

United States Constitution, 1788

Australian independence:

Constitution of Australia, 1901

Statute of Westminster 1931

Statute of Westminster Adoption Act 1942

Australia Act 1986

Barbadian independence

Barbados Independence Act 1966

Canadian independence

Canadian Confederation, during the 1860s

Constitution Act, 1867

Statute of Westminster 1931

Canada Act 1982

Egyptian Independence

Unilateral Declaration of Egyptian Independence, 1922

Indian independence

Dominion of India, 1947

Irish independence (disambiguation)

Israeli independence:

Mandatory Palestine, 1920-1948

Israeli Declaration of Independence, 1948

Jamaican independence

Jamaica Independence Act 1962

New Zealand independence

Declaration of the Independence of New Zealand, 1835

New Zealand Constitution Act 1852

Dominion of New Zealand, 1907

Statu3te of Westminster 1931

Realm of New Zealand, 1947ss

Statute of Westminster Adoption Act 1947

Constitution Act 1986

Scottish independence

Scottish r referendum, 2014

WeWWlsh independence

Intergovernmental immunity (Australia)

In Australia, the doctrine of intergovernmental immunity defines the circumstances in which Commonwealth laws can bind the States, and where State laws can bind the Commonwealth. This is distinct from the doctrine of crown immunity, as well as the rule expressed in Section 109 of the Australian Constitution which governs conflicts between Commonwealth and State laws.

John Curtin

John Curtin (8 January 1885 – 5 July 1945) was an Australian politician who served as the 14th Prime Minister of Australia, in office from 1941 until his death in 1945. He led the country for the majority of World War II, including all but the last few weeks of the war in the Pacific. He was the leader of the Australian Labor Party (ALP) from 1935 to 1945, and its longest serving leader until Gough Whitlam. Curtin's leadership skills and personal character were acclaimed by his political contemporaries. He is frequently cited as one of Australia's greatest prime ministers, and is the only prime minister to represent a constituency in Western Australia.

Curtin left school at the age of 13 and became involved in the labour movement in Melbourne. He joined the Labor Party at a young age and was also involved with the Victorian Socialist Party. He became state secretary of the Timberworkers' Union in 1911 and federal president in 1914. Curtin was a leader of the "No" campaign during the 1916 referendum on overseas conscription, and was briefly gaoled for refusing to attend a compulsory medical examination. He moved to Perth the following year to become the editor of the Westralian Worker, and later served as state president of the Australian Journalists' Association.

After three previous attempts, Curtin was elected to the House of Representatives at the 1928 federal election, winning the Division of Fremantle. He remained loyal to the Labor government during the party split of 1931. He lost his seat in Labor’s landslide defeat at the 1931 election, but won it back in 1934. The following year, Curtin was elected party leader in place of James Scullin, defeating Frank Forde by a single vote. The party gained seats at the 1937 and 1940 elections, with the latter resulting in a hung parliament. The ALP eventually formed a minority government in October 1941, when the Fadden Government lost a confidence motion.

The Japanese attack on Pearl Harbor occurred two months after Curtin became prime minister, and Australia entered the war against Japan. Bombing raids on northern Australia soon followed. Curtin led the nation's war effort and made significant decisions about how the war was conducted. He placed Australian forces under the command of the American general Douglas MacArthur, with whom he formed a close relationship, and successfully negotiated the issue of overseas conscription that had split his party during World War I. The ALP won almost two-thirds of the seats in the House of Representatives at the 1943 election, which remains a party record. Curtin died in office in July 1945, after months of ill health attributed to the stresses of the war. Many of his post-war reconstruction plans were implemented by his successor Ben Chifley, who in 1946 led the ALP to consecutive victories for the first time.

October 9

October 9 is the 282nd day of the year (283rd in leap years) in the Gregorian calendar. 83 days remain until the end of the year.

Statute of Westminster 1931

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom whose modified versions are now domestic law within Australia and Canada; it has been repealed in New Zealand and implicitly in former Dominions that are no longer Commonwealth realms. Passed on 11 December 1931, the act, either immediately or upon ratification, effectively both established the legislative independence of the self-governing Dominions of the British Empire from the United Kingdom and bound them all to seek each other's approval for changes to monarchical titles and the common line of succession. It thus became a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. As the statute removed nearly all of the British parliament's authority to legislate for the Dominions, it had the effect of making the Dominions largely sovereign nations in their own right. It was a crucial step in the development of the Dominions as separate states.

The Statute of Westminster's relevance today is that it sets the basis for the continuing relationship between the Commonwealth realms and the Crown.

Statute of Westminster Adoption Act

There are several Acts named Statute of Westminster Adoption Act:

Statute of Westminster Adoption Act 1942, an Act of the Parliament of Australia

Statute of Westminster Adoption Act 1947, a constitutional Act of the Parliament of New Zealand

Statute of Westminster Adoption Act 1947

The Statute of Westminster Adoption Act 1947 (Public Act no. 38 of 1947) was a constitutional Act of the Parliament of New Zealand that formally accepted the full external autonomy offered by the British Parliament. By passing the Act on 25 November 1947, New Zealand adopted the Statute of Westminster 1931, an Act of the British Parliament which granted full sovereign status and Commonwealth membership to the Dominions ratifying the statute. New Zealand was the last Dominion to do so, as the Dominion of Newfoundland voted to become a part of Canada in 1948.

At the time of its adoption in New Zealand, the Statute of Westminster was seen as a necessary constitutional step to clarify the sovereignty of the Parliament of New Zealand, and not a change in New Zealand's relationship with its former coloniser, too which New Zealand politicians stressed continued loyalty. It has come to be regarded as an important step in the independence of New Zealand.

Sue v Hill

Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election. The result was challenged on the basis that Hill was a dual citizen of the United Kingdom and Australia, and that section 44(i) of the Constitution of Australia prevents any person who is the citizen of a "foreign power" from being elected to the Parliament of Australia. The High Court found that, at least for the purposes of section 44(i), the United Kingdom is a foreign power to Australia.

Timeline of the Commonwealth of Nations

This is a timeline of the Commonwealth of Nations from the Balfour Declaration. Some regard the Balfour Declaration as the foundation of the modern Commonwealth.

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doctrines
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