Introduction to Australian Law - Report Example

RUNNING HEAD: AUSTRALIAN INDEPENDENCE Introduction to Australian Law Name: Course: Tutor’s Name: 25th, March, 2010. Introduction “The Queen of England is the Queen of Australia”, but is Australia still a colony of England? Before the British colony in 1788, Australia had about 500 000 Aboriginal people speaking 600 to 700 different languages. These different languages differentiated the groups who had their own beliefs, customs, religion and values. The Aboriginal people were self reliant, independent and managed to sustain their environment for about 50 000 years before the British invaded their land (R.I.C, 2001). Self reliance, independence and freedom all went away in the year 1788 when the British settled in Australia and settled a penal colony in Sydney. According to the British, the Australians were uncivilised and they came in with new animals, clothes and new laws. Australians were forced to cope with the changes made which led to some of them dying of disease. Out of the 600-700 different language speaking communities, only about 50 languages survived (R.I.C, 2001). The Autocratic Rule In 1770, Captain Cook took possession of the east coast of Australia thereby claiming the English sovereignty. The boundaries of this possession were later made clear in the first commission issued by Captain Arthur Philip in 1786. Captain Arthur was made governor of the New South Wales as a penal settlement (Carney, 2006). Later in 1788, United Kingdom established a penal colony in Sydney and this settlement was also ruled by a British Governor (Dupont, 2001). Australia was guarded by Marines through Norfolk Island and Sydney Cove and later guarded by colonial service unit in 1790 and 73rd regiment of foot in 1810 as one of the British colonies (AMW, 2010). The Emergence of the Australian Common Wealth The path to independence began by the emergence of the common wealth of Australia. After the Europeans settled in Australia in 1788, the political organization was that which resembled other British colonies (the six of them). Each colony was governed separately, but under one Monarchy. In the 19th century, Tasmania, Victoria, Queensland and South Australia separated from New South Wales and became new British colonies. An additional new British colony was Western Australia (Farnsworth, 1992; Rose, 1929). The separate governance progressed to a level of each colony having its own internal self government although under colonial parliaments in the mid nineteenth century. The role of the colonizing country was only to look after the foreign affairs, defence and important interventions (Hudson & Sharp, 1988; Twomey, 2004). The common wealth was established and had all the sovereign state powers but the power to make laws and issues dealing with foreign affairs were still left in the hands of the United Kingdom (Twomey, 2004). Australia during this time was still being represented in international conferences as a colony of the United Kingdom. Additionally, the constitution still provided that the British Monarch be represented in the Australian self governing state. This was done by appointing a Governor-General upon advice from the British (Selway, 1997). Any Australian parliament law could also be disallowed within a year by the mother country (Hudson & Sharp, 1988). The path to Australian independence began with the independent colony laws and the applied customs and duties which came as a result of self governing colonies. This was the beginning of the emergence of the common wealth of Australia. There was then a proposal for the six colonies of Britain to form a federation in the 1890s. The new idea led to the development of a constitution that incorporated federalism of US constitution, the British government parliamentary and monarchy system and the Switzerland’s use of referendum, after some two constitutional meetings (Twomey, 2004). This is what formed the Australian common wealth. The adopted constitution was passed as an act of the British parliament (the Australian common wealth constitutions Act) and enforced in January 1901 (Hudson & Sharp, 1988). Other important factors that contributed to the Australian independence as it evolved are; establishment of the common wealth, (1901), shared monarchy development (1927), the statute Westminster that was passed in 1931 and the passing of the Australian act (1986) (Hudson & Sharp, 1988). Development of a Shared Monarch In the 1920s, there was a very important change in the British constitutional structure that contributed to the state of Australia’s independence today. The British Empire’s monarchy became shared among individual kingdoms that all formed the United Kingdom. This was a change that occurred in 1927 where the unified crown of Great Britain was substituted by multiple crowns of shared monarch. The change was provided in the British Royal and Parliamentary Titles act of 1927 (Hudson & Sharp, 1988). The unified crown before 1927 had individual dominions which constituted a number of states ruled by a king. King George V for example, ruled over Canada, South Africa, Australia, Irish Free State, New Zealand and many others forming a subset of the UK. After the change in the constitution which resulted in sharing of the monarch, the King still ruled over the various states (New Zealand, Australia, South Africa, Ireland and many more), but never acknowledged the dominion names as was before (Hudson & Sharp, 1988). Instead, the dominions were separated from Great Britain and the King was referred to as the King of Ireland .The formal use of reference to the King as before ( King of Great Britain and Ireland) was changed to the King of Ireland only, an indication that Ireland is no longer under the United Kingdom. The monarch however remained the head of all the states. The previous concept as depicted in the discussion was that of one monarch heading all dominions. This kind of ruling changed to one monarch heading multiple monarchies which were previously its dominions (Hudson & Sharp, 1988). Australia was successful in its path to independence because it is one of the states that King George V ruled. After a common wealth conference from which 1927 Act substituted the unified monarchy to shared monarchy, most of the dominions did not take into action the enforced law and ended up being slow in making any changes. The Irish however, took the opportunity and developed their own dominion governments (Hudson & Sharp, 1988). The Irish people changed their constitution to allow the selection of their own governor-generals and to allow people the right to speak directly to (or have an audience with) the King. By this time, the King of Ireland was King George V and Australia was among the states under his rule. One evolution to independence clear in this case is the ability of newly formed dominion governments to select their own governor –generals. Other dominions suffered futile and determined attempts to block similar actions as King George’s dominion’s revolutionary step even though they eventually achieved their aims (Hudson & Sharp, 1988). The changes resulted to Australia having its own King and being referred to as a Kingdom of its own. The Kingdom however never had the formal title of a queen until 1973 when the title was adopted following from first to last, the royal style and title Act I, enacted by the Australian parliament (Dupont, 2001). This level shows the formation of an independent Australia (Hudson & Sharp, 1988). The Statute of Westminster This is another constitutional change that contributed to the recognition of Australia’s independence. The Statute of Westminster of 1931 along with the formation of the British common wealth led to the recognition of Australia, New Zealand, Canada, South Africa and other dominions as independent dominions (Dupont, 2001; Twomey, 2004). The dominions were allowed to make their own laws and would not do that only if they felt the British government and parliament should do so (Twomey, 2004). According to Hudson & Sharp, the British government and parliament were only to make the laws for independent dominions only when requested to do so. Most of the dominions developed the legal right to adopt and change the previous legislations passed in Westminster (Hudson & Sharp, 1988). Australia however opted to remain under the British government so that they any legislation directed to them by the British Parliament still worked. In short, Australian states still remained as self governing states of British colonies although with some differences (Rose, 1929; Twomey, 2004). They could appoint their own governor –general as discussed above although this was still under the influence of British ministers and were no longer part of the Great Britain in relation to governing of British colonies (Rose, 1929). Since Australia opted to still be under the British government and parliament by choice, the appointment of governor-generals was influenced by the Australian state premiers who supported and gave advice to the British ministers (Hudson & Sharp, 1988; Rose, 1929; Twomey, 2004 ). The Statute of Westminster may not have been implemented by the Australian states but the changes in the constitution led to evolution of the Australian constitution. Since it is the Australian states’ premiers that were to give advice on whom to appoint, they adviced on the appointment of a native born Australian- Sir Isaac Isaacs as Governor-General in 1931 (Selway, 1997). This was never received well by the British and they opposed it. This led to the establishment of the practice that the governor general should be appointed by the monarch upon advice from the Australian premiers at the common wealth level. The freedom to appoint a governor –general of choice is implemented (1931) (Hudson & Sharp, 1988; Twomey, 2004). The Australia Act The Statute of Westminster led to the formation of the Australian Act. The statute power allows the Australian states to request the British parliament to make laws for them (Sawer, 1988). This power was used by the Australians in several occasions, but the last one led to the complete exclusion of the British government from Australian government in terms of law making and governing of the states. The Australian government requested the British parliament in 1986 to pass the Australian Act (Carney, 2006; Twomey, 2004; Sawer, 1988) . This Act prohibits the British government from making any laws for Australia and its states even when requested to, it provides that any laws that required the attention of the British parliament can now be passed by the Australian states and Australia itself and also removed the power of the monarch on Australia and its states unless the Queen was present in such states (Twomey, 2004; Sawer, 1988; Sawer, 1988). The Australian Act also brought to an end the Judicial Committee of the Privy Council’s right to appeal hence disconnected the link between Australia and the United Kingdom (Hudson & Sharp, 1988). Conclusion Australia now has its own constitution and laws, one which came as a result of the first steps in colonialism (formation of self governing states). The state has its own Monarch evolved from the development of separate monarchies after 1927 British royal and parliamentary constitutional reconstruction. The state developed the ability to select its own governor-generals, an ability achieved from the step made by the dominion after shared monarchy was implemented. It also made use of the statute of Westminster which led to complete elimination of the British Government’s influence on Australia. Australia’s independence still allows the Queen of England to exercise her powers on the states only when she is present at the states. This is why the Queen of England is still the Queen of Australia, but this does not mean that Australia is still under the colony of the British Government. Just as explained in the last section, the Australian government used the statute of Westminster to gain complete control of the Australian states. Reference List Australian Memorial War (AMW). (2010). Colonial Period, 1788–1901. Retrieved on 24th, March, 2010 from: http://www.awm.gov.au/atwar/colonial.asp Carney, G. (2006). The Constitutional Systems of the Australian States and Territories Cambridge, England: Cambridge University Press. Dupont, J. (2001). The Common Law Abroad: Constitutional and Legal Legacy of the British Empire. New York, US: Wm. S. Hein Publishing. Farnsworth, H. S. (1992). The Evolution of British Imperial Policy During the Mid Nineteenth Century: A Study of the Peelite Contribution, 1846-1874. New York, US: Garland. Hudson, W. J and Sharp, M. P. (1988). Australian Independence: Colony to Reluctant Kingdom. Victoria, Australia; Melbourne University Press. R.I.C. Publications Pty, Limited, (2001). Society and Environment. Australia: R.I.C. Publications. Rose, J. H. (1929). The Cambridge history of the British Empire, Volume 1. London: CUP Archive. Sawer, G. (1988). The Australian Constitution. 2nd Ed. Australia: Australian Govt. Pub. Service. Selway, B. (1997). The Constitution of South Australia. Sydney, Australia: Federation Press. Twomey, A. (2004). The Constitution of New South Wales. New South Wales, Australia: Federation Press. Read More