Main Stages in Australias Path toward Legal Independence from the UK - Assignment Example

The queen of England is the queen of Australia. Does this mean that Australia is still on England colony? Identify and discuss the main stages in Australia's path toward legal independence from the United Kingdom. Australia is an independent, sovereign nation, with complete jurisdictional authority in the formulation of its domestic and foreign policy choices and decisions. One has to understand right at the beginning that if one is to trace the position of the Queen within the Australian national polity it would become necessary to trace first the process of Australian independence ad its history and the manner in which the nature of the Queen’s role in integrated within the Australian nation in particular and the Commonwealth in general. Australia unlike many of the other colonies, did not gain independence in pone stroke, but the process was an evolutionary one- one that did not impact the position of the Commonwealth as a community under the Crown. With the passage of the Statute of Westminster, Britain lost much of its legislative control over Australia, dissolving the constitutional links with between the two countries. Despite this process, the ultimate link with the Sovereign head of Britain stayed intact. One can in fact even find the notion of the Crown embedded in the constitution of Australia, given the fact that the every preamble to the document has a recitation of the fact that the residents of the six colonies were in agreement to become united in a Federal Commonwealth under the Crown. Section 2 of the Constitution empowers the Queen to make an appointment of the Governor-General who “shall be Her Majesty's representative”. Again, it is stated in Section 61 that the executive power of the Commonwealth would be vested with the Queen. The Section also declares that given the fact that the Governor-General is appointed by the Queen and hence is her representative, the executive power is therefore to be exercised by him in this capacity1. The point to be noted here is that these powers are constant with the practice of British Constitutionality and hence the Governor General appointed by Queen acts in complete agreement on the advice of the democratically elected government in Australia. His role therefore is largely advisory2. In most occasions, the election of the Governor General happens in consultation with the Australian government and rarely does the Queen make decisions on her own. The basic point of importance here is that in electing the Governor general, the Queen takes the advice of the not the British council of Ministers but the Australian ones, reiterating Australia’s independence and the fact that the Queen acts in the capacity of the head of the Australian Commonwealth and not of the Australian nation in its capacity as a sovereign country. The fact that the Queen was in fact that sovereign head in the context of numerous independent variables was recognized at a conference of Prime Ministers and other representatives of the nations of the Commonwealth in December 1952 where it was agreed that each country should adopt a form of Royal title suitable to its own circumstances. In 1953, the Royal Style and Titles Act 1953 (Cth) was affected making it the first time that 'Elizabeth II was referred by UK, Australia and other members of the Commonwealth as the head of the Commonwealth and not a sovereign head of the state.. her official title became the defender of faith. Further amendments were made in 1973 (Royal Style and Titles Act 1973), which further consolidated the position of the Queen as the Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. The fact that much of the British Empire disappeared post the Second World War has significance in terms of the colonies given the fact that many of the colonies in the manner of their independence accepted the Queen as their sovereign head, with no significance on their individual statehood or the sovereignty in terms of their decision making authority. These countries include Canada, Australia, New Zealand and Papua New Guinea, amongst others. The Queen of England is also the titular Queen of Australia and in this capacity therefore she is beholden with a completely unique and vastly dissimilar position vis-à-vis the position she holds in her capacity of the Queen of England. The fact that these two postions were different and distinct from each other was encapsulated in a comment made by Gibbs CJ in Pochi v Macphee wherein he stated that the loyalty owed by Australians to the Queen is not the same as the one owed by British subjects, but in a totally different capacity as subjects to the Queen of Australia. One can therefore state that the Queen might be the sovereign head of Australia but this in no way makes the Australian nation a part of Great Britain. The Commonwealth Constitution was approved by the electors in all six colonies (soon to be states) in 1899 and 1900 was then enacted with relatively minor amendments (principally to s74) by the United Kingdom Parliament, as had always been envisaged3. Although the Constitution did not expressly provide that the Commonwealth and the States should remain subject to the Colonial Laws Validity Act (1865) UK, which invalidated colonial legislation repugnant to British legislation applying to the colony by paramount force nether the British government now the Australian representatives in London questioned whether or not it was in fact correct that they had in fact remained subject in effect with the Act4. There was no need to expressly state this because it was taken for granted-a position later accepted by the High Court-since the Commonwealth was not in fact perceived as being independent but merely a self governing colony within the British empire5. The idea in essence therefore was that the Commonwealth continued to be bound by British legislation applying by paramount force until the adoption of the Statute of Westminster in 19316. The Statute of Westminster in 1931 was enacted by Britain to comply with the resolutions and declarations adopted at the Imperial Conference held at Westminster un 1926 and 1930. The primary objective of these resolutions was the granting of self-government to the dominions7. The preamble refers to the Crown as the symbol of free association of the members of the British commonwealth of Nations. It was also provided by the statute that no further laws made by the dominions would be subject to veto or compulsory acceptance in accordance with the law of England. This meant in essence that no law required consent or clarification. Section 2(2) also went on to state that in future no law enacted by the dominions would be declared null and void simply by virtue of the fact that it clashed or was repugnant to any given law formulated or already in existence within the UK. The section further provided tat the powers of the dominion shall include the power to repeal or amend any such Act, order, rule or regulation insofar as the same is part of the law of the dominion. Section 3 is also explicit n the powers of the dominions: “It is hereby declared and enacted that the Parliament of dominion has full power to make laws having extra-territorial operation” The Act is not explicit in the context of sovereignty except the preamble where it is stated that the dominions were united by a common allegiance to the crown. It appears therefore that the British Acts could be extended to the dominions illustrating that these were not sovereign states. One would also have to be remembered here that the statute was not applicable until it was adopted by the Commonwealth parliament, reflecting concerns over future weakening of tied between Britain and Australia. The States on the other hand legally remained British colonies until to enactment of the Australia Acts 1986 (UK and Cth). They lacked power to enact legislation repugnant to the British legislation applying to them without their consent (although it was judicially recognized that it would not do so) and state Governors were appointed by the Queen on the advice of the British government, the monarch presumably acting as the Queen of the United Kingdom, not Queen of Australia8. It has to be noted in this context however, that the British government generally acted merely as an intermediary, forwarding the State’s nomination of Governor to the Queen-in fact the Judicial Committee of the Privy Council also retained jurisdiction in State matters, with the exception after 1975 of appeals from high Courts, until the Australia Acts, but as Commonwealth Nations have demonstrated, retention of Privy Council appeals is not incompatible with complete independence. The States lost their colonial status marking the final end of the Australian journey to independence through the Australia Acts (1986) UK and Cth. The Act also took the additional steps of terminating Britain’s power to legislate for Australia and ending the Privy Council Appeals9. The states were freed from the doctrine of repugnancy and other colonial fetters, empowered to enact extra-territorial legislation. Australia as a composite polity comprising the Commonwealth, the States and The Territories was therefore manifestly independent n march 3, 2986, the sate when the Australia acts came into independence10. One could conclude the argument therefore that while it is easier to date the history of legislative independence in Australia, it would still be difficult in the eye of many literary and legal discords to determine the unanimous date of Australian independence. Reference: Volume 1 of the Final Report of the Constitutional Commission 1988. Retrieved April 6, 2010, < http://www.statusquo.org/aru_html/html/queenofaus.html#Text102> Winterton, G., (1992). “The Constitutional Position of Australian state Governors” in Lee, H. P., and Winterton, G., (eds), Australian Constitutional Perspectives (Law Books Co). pp274, 289 French, R., Lindell, G., and Saunders, C., (2006). Reflections on the Australian Constitution. The Federation press. pp39-42 Akweenda, S.,(1997). International law and the protection of Namibia's territorial integrity. Martinus Nijhoff Publishers. Pp190-192 Read More