Constitution Watch has received enquiries from its readers to confirm the historical journey of Australia and the Dominions so as to set the record straight on misinformation circulating online.
The central proposition advanced in various documents is that Australia's participation in the Treaty of Versailles and the League of Nations in 1919 ~ 1920 somehow terminated the Commonwealth of Australia Constitution Act 1900 and created a constitutional vacuum in Australia.
What actually occurred was a gradual and documented development of Australian nationhood. Australia moved from being a group of self governing British colonies, through Federation and increasing international autonomy, towards complete legislative and constitutional independence. These developments did not destroy the Constitution. They occurred through and alongside the constitutional system established in 1900.
The Commonwealth of Australia Constitution Act 1900 was enacted by the BritishParliament following the constitutional conventions and referendums conducted in the Australian colonies. The Act received Royal Assent on 9 July 1900 and commenced on 1 January 1901. On that date, the six colonies became the six States of the new Commonwealth of Australia. Australia became a Federation with Dominion status within the British Commonwealth.
The Constitution undoubtedly has a British legislative origin. That fact is neither controversial nor concealed. But many documents under consideration make an important logical error when it moves from that historical fact to the proposition that the Constitution remained permanently dependent upon the British Parliament.
The Constitution established a federal system of government in Australia. It created the Commonwealth Parliament, the executive government, the High Court and the division of legislative powers between the Commonwealth and the States. It also established a mechanism by which the Constitution itself could be altered through referendum process.
The constitutional system created in 1900 was therefore not an empty administrative arrangement awaiting replacement. It was the legal framework within which the Commonwealth of Australia operated from 1 January 1901. There is a legitimate historical criticism that the franchise and constitutional process of the 1890s were far from universally democratic by modern standards. Many people were excluded from voting, particularly Aboriginal and Torres Strait Islander people, and women did not enjoy equal voting rights throughout the federation process.
But the inclusiveness of the franchise and the legal validity of the constitutional instrument are separate questions. The fact that the Constitution was approved under the electoral laws of its time does not establish that it was legally void.
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Australia after Federation
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The years following Federation are particularly important because they demonstrate that Australian constitutional development was evolutionary. Australia did not suddenly cease being connected to Britain on 1 January 1901. Nor did it immediately become completely independent in every constitutional sense. Instead, Australia possessed substantial domestic self government while certain constitutional and legal relationships with Britain remained.
This was characteristic of the British Empire and, subsequently, the British Commonwealth. The mistake in various documents is therefore treating sovereignty as though it were an electrical switch that could only be either British or Australian. Constitutional independence does not necessarily occur at one moment.
Australia could exercise extensive self government while still participating in a wider imperial constitutional structure. The First World War accelerated Australia's emergence as a distinct national actor. Australia participated in the war as a separate Dominion and developed an increasingly independent international identity. Australian representatives participated in theParis Peace Conference following the war, and Australia signed the Treaty of Versailles separately on behalf of the King.
This was an important constitutional and international development, It demonstrated that Australia could act internationally in its own right. But it did not repeal the Australian Constitution.
Nothing in the Treaty of Versailles purported to repeal the Commonwealth of Australia Constitution Act 1900. Nor did the treaty create a new Australian constitution. The proposition that Australia's separate participation in the international settlement automatically extinguished its existing domestic constitutional law therefore confuses two different legal spheres.
International recognition of Australia's distinct personality did not require the expiry of its domestic constitutional institutions.
The Australian contingency to the treaty signed on behalf of the King.
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The League of Nations
The same distinction applies to Australia's membership of the League of Nations. Australia became an original member of the League of Nations following the First World War, this was unquestionably significant. It provided further evidence that Australia was developing a distinct international personality and was capable of participating in international affairs independently of Britain.
But League membership did not transform the Australian Constitution into an unlawful or defunct instrument. The League Covenant did not contain a provision stating that the domestic constitution of a Dominion ceased to have effect when that Dominion became a member of the League.
Nor did Article 18 which required treaties and international engagements to be registered and operate as a mechanism for invalidating domestic constitutional legislation.
Article 18 concerned the international registration of treaties and engagements. It did not provide that the Constitution of a member state would cease to exist unless registered with the League. This is a critical distinction because various claims repeatedly treat Article 18 as though it bought about a constitutional revocation.
Likewise, Article 20 of the Covenant dealt with inconsistent international obligations between League members. It did not repeal the domestic constitutions of those states. The argument therefore takes genuine provisions of international law and assigns them a legal effect they simply did not possess.
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Dominions and Self governing colonies could enter the League as members, it was not an exclusive membership to Independent Nations.
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The importance of the Balfour Report
The next significant development occurred at the Imperial Conference of 1926.
The resulting Balfour Report recognised Britain and the Dominions as ~
“autonomous Communities within the British Empire, equal in status”
This was a major constitutional development that reflected the reality that countries such as Australia were no longer appropriately understood simply as subordinate colonies administered from London.
They possessed their own governments and increasingly independent political identities. But once again, this did not produce a constitutional vacuum. The Balfour Agreement did not say that the Australian Constitution had ceased to exist, nor did it have power to do so.
It was quite the opposite, it recognised the existing political development of the Dominions. Australia was becoming increasingly autonomous while continuing to operate under its existing constitutional institutions. The outcome was therefore not to create a new constitutional order, but to clarify the constitutional relationship between Britain and the Dominions within the British Empire and the emerging Commonwealth of Nations.
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The Balfour Report of 1926 established that Great Britain and its Dominions were autonomous communities within the British Empire, equal in status and not subordinate to one another in any aspect of their affairs.
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The Statute of Westminster
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