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.

Statute of Westminster Adoption Act 1942
Parliament of Australia
Royal assent9 October 1942
Commenced9 October 1942 (retroactive to 3 September 1939)
Amended by
1986 (minor)
Related legislation
Australia Act 1986
Status: Current legislation

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.

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.
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