Australias Path toward Legal Independence from the United Kingdom - Essay Example

The ................................... Australia's path toward legal independence from the United Kingdom. The dual Australia Acts of Common Wealth Parliament and United Kingdom Parliament resulted in severance of Australia’s allegiance to United Kingdom except the retention of United Kingdom Monarch as Queen of Australia. All the three branches of the Government that is legislative, judiciary and executive have become independent of the U.K.’s seal from March 1986 as a result. The U.K. cannot legislate any law after 3 March 1986 for the Commonwealth and the States of Australia as per section.11 However, Sue v Hill (1999)2 made it clear that section 1 does not preclude the legislative power of the United Kingdom over Australia but at the same time the U.K. law cannot apply to Australia. Section 10 removes the executive authority of the U.K. over Australia. The decision in Dooney v Henry (2000)3 declared that proclamation of Letters Patent of February 1986 reconstituting the Office of the Queensland Governor on 8 March 1986 under the Great Seal of U.K.after the date cut off date of March 3 1986, the date of commencement of the Act, should be ignored as it took place after the cut off date. The Privy Council also has no authority any longer to entertain appeals as per section 11. Prime Minster of Australia can no longer have constitutional relationship with the Queen of England. However each State Premier can directly liaise with the Queen as per section 7(5). The said Australia Acts have also annulled several restrictions on the States through the repeal of The Colonial Laws Validity Act 1865 (imp)4.as per section 3(1). The doctrine of repugnancy has also been abolished vide section 3(2) except in the case of repealing or amending the Australia Act itself and repealing or amending of Statute of Westminster 1931(Imp).5 The Queen of England has no privilege of suspending or rejecting the State legislation as envisaged in section 8. The Commonwealth is now autonomous by the enactment of the Statute of Westminster (1931) The States could also have severed relationship with the Queen of England but they viewed it would make them dependant on the commonwealth. This is what Sawer 6(1963) called as ‘grotesque constitutional situation’. The Australian Act was brought in to enable High Courts to entertain appeals from the State Supreme courts thus removing Privacy Council from the scene to hear appeals instead. Question of appealing against an order of an Australian court to the Privy did not arise from 1975.7 Colonial legal history Sydney became the first State of British settlement in the year 1788 and it was called a ‘settled colony’. As an uninhabited place, the settled colony received all the English statutes and the applicable common law for being applied from the time of settlement, ignoring the laws of the tribals who were considered as uncivilized. According to Blackstone, it was the practice of applying British law to all such settlements in uninhabited places. For English subjects settled in the new colonies, application of English laws was their birth right. But these positions got evolved over time by the settlers setting up their own judicature for resolving disputes among themselves at first instance.8 English Common Law and English Acts were part of Australian colonial legal system as the colonial authorities had been accountable to London. In due course, the Westminster Parliament allowed Commonwealth Government of Australia to develop its own laws but with allegiance to English law. Major change became a reality with the enactment of Australia Act 1986 9enacted by both Australia and the U.K. whereby the U.K. acknowledged that Australia could be governed by Australian law thus triggering complete legal independence from the U.K. After the Second World War, non-British Europeans migrated to Australia in large numbers and they had been under compulsion to honour English traditions and laws until 1979. The cultural diversity ended the White Australia in mid-1960s and emergence of multi-cultural society. However multi culturalism overtook English supremacy in Australia and a foreign monarch became irrelevant to the new multicultural society in Australia. However the referendum held in 1999 for making the country Republic and in turn abrogate a non-resident monarch as the head of the Government was defeated. Confusion prevailed whether the Queen of England was a defacto head of the state or simply a monarch.10 . Colonial Laws Validity Act 1865(imp) (CLVA) The Australian Courts of Justice Act 1828 11 sought to enhance the legislative power of the Legislative Council through removal of capacity of Governor and of the Imperial Crown to enact laws. The laws as soon as enacted were required to be enrolled in the supreme court within seven days for declaration of repugnancy if any by any judge within fourteen days. The Crown had the power to disallow the new law within four years as per section 28. At the time, the United Kingdom faced demands for representative government and taxes were sought to be challenged without the virtue of representation. Meanwhile Victorian Supreme court ruled in Ah Toy v Musgrove that the Governor had no power to restrain an alien from entering the colony. It was based on the assumption that responsible government through political evolution was not adequate to confer common law powers of the Crown. On the other hand, Higginbotham CJ dissented saying that the Government of Victoria had powers of self government through Constitution Act 1855 (Vic)12 But Justice Boothby of Supreme Court of South Australia held in a series of judgments between 1859 and 1865 South Australian enactments invalid as being repugnant to the U.K.laws, royal instructions and the common law. Concerned at these developments, the U.K.Parliament enacted Colonial Laws validity Act (imp) (CLVA) 13 Section 2 & 3 of CLVA deal with repugnancy. Section 2 says that if a law is repugnant to any colonial law of Parliament because of inconsistency, it shall be absolutely void and inoperative. Section 3 says that any colonial law shall not be or shall not be considered to be void and inoperative as repugnant by being inconsistent with any law of England unless the same is repugnant as per section 2. Thus the CLVA put an end to the supremacy of English made law except when it is enacted for a colony.14 The Constitutional Commission 1988 has stated that it is quite wrong to assume a foreign monarch as the Queen of Australia on the examination of the Queen's position envisaged in the Constitution of Australia and other laws for constitutional affairs (Queen of Australia) The period between 1788 and 1890 in Australia witnessed a series of constitutional developments. They are, the rise of self government and colonial parliamentary power, rise of representative power, decline in governor’s power, emergence of responsible government, and emergence of colonial judicial power. Later Commonwealth of Australia Constitution Act 1900 came into operation from 1 January 1901. It is the paramount force Act as per the CLVA. The Australian legal independence thus followed upon the enactment of Statute of Westminster 1931 which repealed the operation of CLVA for the Commonwealth but not the States thus removing repugnancy to be applicable to commonwealth. States which had been subject to repugnancy were freed by the enactment of Australia Acts 1986.15 (Australian Public Law, 2009). Conclusion The Australia Act 1986 made The Queen of England redundant and hence is practically is no longer the Queen of Australia. As the complete legal independence has been achieved for Australia, there is no need to approach House of Lords in England for final decision. Even for the U.K., highest Authority now is European Court of Justice for all legal purposes. Thus, Australia is no longer the colony of the U.K. These developments have conferred complete legal independence for Australia. However, for political purposes, Monarch of the U.K. is the Queen of Australia. As the former colonies of the British, all the common wealth countries including Australia continue to be under the Queen but without right to enact laws for Australia. As the 1999 referendum rejected the idea of making Australia a republic, the Queen of England presently the Queen and Monarch is the formal head of the Government as per the country’s constitution. Works cited Bibliography Books Blackstone Williams. Commentaries on the Laws of England1765-1769 Vol 1, 107 (1765 revised 1978) cited in Carney Gerald, The constitutional systems of the Australian states and territories, Cambridge University Press. 2006 Print Carney Gerald. The constitutional systems of the Australian states and territories, Cambridge University Press. 2006. .Print Jupp James. The Australian people: an encyclopedia of the nation, its people and their origins, Cambridge university Press. 2 ed 2001. Print. Sawer, Geoffrey. Australian federal politics and law, 1929-1949 / Geoffrey Sawer Melbourne University Press, [Parkville] 1963. Print Twomey Anne. The Constitution of New South Wales, Federation Press. 2004. Web.25 March 2010 Others Australia act 1986 (c. 2) (UK), Web http://www.statutelaw.gov.uk. , AUSTRALIA ACT 1986 (Cth), Web http://www3.austlii.edu.au/au Australian Courts Act 1828 (UK) Web http://www.foundingdocs.gov.au. 25 March 2010 Australian Public Law, Lecture Plan. 2009. Web.25 March 2010 Colonial Laws Validity Act 1865 28 & 29 Vic. c 63 (Imperial) date of assent 29 June 1865 commenced on date of assent Web 25 March 2010 Statute of Westminster 1931 (c.4) Web http://www.statutelaw.gov.uk/ 25 March 2010 Dooney v Henry (2000) 174 ALR 41 Queen of Australia, Constitutional Commission 1988. Web 25 March 2010 Sue v Hill (1999) 199 CLR 462 at 491 Victoria Constitution Act 1855 (UK) Web: http://www.foundingdocs.gov.au 25 March 2010 Read More