STATUTE OF WESTMINSTER ADOPTION BILL 1937
Second Reading
Mr MENZIES:
AttorneyGeneral · Kooyong · UAP
– I move -
That the bill now read a second time.
This measure provides for the adoption of sections 2, 3, 4, 5 and 6 of the Statute of Westminster 1931. It is desirable that I should refer, as briefly as possible, first, to the history ofthe new Dominion status which is completed by this legislation ; secondly, to the details of the legislation itself - those details being important, and, sometimes, extremely difficult - and, finally, to the reasons which have operated in the mind of the Government in arriving at its decision to submit adopting legislation to this Parliament.
So far 33 the history of the new Dominion status is concerned, I probably need not say very much. The history of the development of selfgovernment in British countries is, of course, an extremely interesting, as well as a very exhilarating one, and it is not less exhilarating when it is considered before the development of the new Dominion status, because, during the century or two before the war of 1914-1918, the growth of crown colonies into self -govern ing colonies, and, finally, into self-governing dominions, was one of the most striking things, constitutionally, that had happened in the history of the world. After the war it was found, in most British dominions, that there had been a. substantial development in the theory which underlies dominion selfgovernment. I am not prepared to say that there had been a very great change in constitutional practice, because, for years before the war, actual interference with the government of any self-governing dominion was substantially unknown ; but there still remained, theoretically, the possibility of such interference.
After the war that theory changed, and a state of mind developed in which it was thought that, not only in practice., but also in theory, complete independence of the self-governing dominions should be assured. There were various reasons for that, I believe. First of all, the wartime consciousness that the dominions had become adult nations, and ought not to be thought of as subordinate bodies, but ought to be regarded as independent and grown-i.n) nations, was tremendously hastened by the circumstances of the war. In the second place, considering these matters chronologically, the independent participation of the dominions in the Peace Treaty negotiations, in the execution of the Covenant of the League of Nations, and in the determination of international obligations since then, all assisted to strengthen the same frame of mind. In the third place - but this is not true of Australia - there existed in certain parts of the British world, what I am tempted to describe as an exaggerated self-consciousness on the subject of independence, a self-consciousness which made men more inclined to chafe over trifling matters of theory than we were in Australia. For example, in South Africa there were local problems, racial and social, arising out of the recent history of the country itself, which led the people there to feel what I believe was, in fact, an exaggerated irritation at the maintenance nf any vestige of theoretical subordination. The effect of ail these things was that, by the time the Imperial Conference was he’d in 1926, the problem of defining, if possible, the constitutional relationship of the various parts of the British world was seen to be one of great practical moment, particularly as it affected some of the component parts. At that conference the subject of dominion status became the most, important topic for consideration. The outcome of the discussions was what is now referred to as the Balfour Declaration in which, for the first time in an official way, the governments of the various British countries endeavoured to set down in a formula what they understood to be their mutual relationship. The classic passage of the Balfour Declaration is that which, referring to the status of the dominions, states -
They ure autonomous communities within the British Umpire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by n common allegiance to the Crown mid Freely associated as members of the British Com mon wealth of Nations.
I pause here to call the attention of honorable members to something which has been frequently misunderstood. That passage refers both to the British Empire and to the British Commonwealth of Nations. They both continue to exist. We sometimes use the expression “ British Commonwealth of Nations “ as if it had been substituted for the older term “ The British Empire,”, but that is not so. Parts of the Empire are not included in the British Commonwealth of Nations. India, and all the nonselfgoverning areas, such as the crown colonies of one kind and another, still remain as part of the British Empire, but they -are not members of the British Commonwealth of Nations.
Mr Brennan:
– Does the right honorable gentleman hold the view that Australia is part of the Empire?
Mr MENZIES:
– I take the view that Australia is part of the British Empire, but that it has a particular status within the Empire as a member of the British Commonwealth of Nations. The conference of 1926, having passed the Balfour Resolution, with’ all its significance and all its ambiguities, set up a committee for the purpose of inquiring into and reporting upon three matters -
- The reservation of dominion legislation for His Majesty’s assent or disallowance.
- Extra territorial operation of dominion legislation : and
- The principles embodied in the Colonial Laws Validity Act, and the extent to which that act should operate between the various members of the British Commonwealth of Nations.
The committee reported exhaustively on all’ those matters to the Imperial Conference of 1930, which accepted the report and., in particular, accepted a recommendation that a declaratory enactment on the whole subject should be passed by the Parliament of the United Kingdom. It was further recommended that, as that enactment was designed to affect the position of all the dominions, it should not be introduced into the Parliament at Westminster until it had been requested and consented to by the various Dominion Parliaments. Pursuant to that, motions were submitted to this Parliament by the government of the day setting out a request and consent to the introduction of legislation. Those resolutions were passed by the House of Representatives on the 28th June, 1931, and the 27th October, 1931, and by the Senate on the 29th June, 1931, and the 28th. October. 1931. The result was that the Statute of Westminster received the Royal assent on the 11th December, 1931.
I wish to emphasize this point: Insofar as the actual passing of the Statute of Westminster constitutes a milestone in our constitutional progress, this point has already been reached and passed, because the Commonwealth Parliament has already approved of the passing of the necessary legislation by the Parliament of the United Kingdom. As I propose to indicate later, for the benefit of those honorable members who are still inclined to make some reservations in regard to this matter, we are not now considering the wisdom of passing the Statute of Westminster itself; we are considering the wisdom or otherwise of adopting certain sections in it, and making them applicable to Australia.
The purpose of the bill now before the House is to adopt for all Australian purposes, sections 2 to 6 inclusive of the Statute of Westminster. This legislation is being introduced here because it was expressly provided in the statute that these sections were not to apply to Australia, New Zealand, or Newfoundland unless they were adopted by the relevant parliaments, although, in fact, the statute automatically applies, without any further adoption, to the Dominion of Canada; the Union of South Africa, and the Irish Free State. I refer to this matter now. because one submission which I shall make later is that uniformity on matters of such fundamental importance should be achieved, and one method of achieving it is for the dominions, which have not yet adopted these sections, to adopt them now, and thus come into complete alignment with the other dominions.
At this stage I turn to the Statute of Westminster itself, which is exhibited, as a schedule to the bill before honorable members. I draw particular attention to the recitals which are contained in its preamble. The point I wish to emphasize is that those recitals are in effect to-day. whether we adopt the statute or not; they are offered as a deliberate recital by the Parliament of the United Kingdom of what it understands to be the position of the dominions. Therefore whatever constitutional significance attaches to the preamble’ to the statute attaches to it irrespective of what the Commonwealth Parliament may do. The recitals in this preamble, in the case of one or two of them at least, are very significant. The first is the recital of the resolutions and declarations made by the conferences of 1926 and 1930. In other words, these resolutions, with all their importance, are taken up, so to speak, by this statute and referred to in its preamble. Secondly, there is the recital, which honorable members had some occasion to consider at the end of last year, which recites -
Any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the parliaments of all the dominions as of the Parliament of the United Kingdom.
We had occasion, as honorable members will remember, to apply the principle of that recital so recently as the end of last year, when we were dealing with the circumstances of the recentRoyal abdication, and it was because of the doctrine enunciated by that recital that this House and another place passed resolutions which related to the legislation then being submitted to the Parliament of the United Kingdom, dealing with the abdication of, and the succession to, the Throne.
Mr Gregory:
– Was that constitutionally necessary?
Mr MENZIES:
– The provision we made here in theCommonwealth Parliament became necessary because of the development of our constitutional position which is recorded in this particular portion of the preamble as well as in the resolutions to which I have already referred.
The next recital is in substance that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the Dominions otherwise than at the request and with the consent of that dominion. That is also an important recital, which has its force as being a recital of a constitutional position irrespective of whether some special sections are or are not adopted. Its importance honorable members will appreciate when I remind them that in the face of that statement it could no longer be seriously contended, as it could be contended 25 years ago, that the Commonwealth Constitution could be amended by the parliament sitting at Westminster. Until the development of these new ideas, it was a perfectly sound theory among constitutional lawyers that the Constitution of the Commonwealth could be amended, either by using the machinery provided in that constitution or by going to the Parliament of the United Kingdom and saying “ Will you pass legislation amending your own legislation under which you set up the Australian Commonwealth?”
Mr Brennan:
– Only technically possible, I think.
Mr MENZIES:
– At any rate, it is tobe put beyond any controversy by the sections which this bill proposes to adopt. I do not want the honorable member to misunderstand me, I am not suggesting that, there is legislative force in the preamble, but there is the completely binding constitutional force in it.
I turn now to the operative provisionsof the Statute of Westminster and, in. particular, to those sections which I am now inviting the House to adopt. I propose to look at each of these. I am not desirous of wearying honorable members, ‘ but it is requisite that we should have a. clear view of the provisions that we are being invited to adopt.
The first one I need look at closely, I think, is Section 2. That section provides in the first place -
The Colonial Laws Validity Act 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a dominion.
The Colonial Laws Validity Act which might just as well be called The Colonial Laws “Invalidity” Act had great importance for many years in interpreting the constitutional statutes of the various dominions and colonies. Its most important provision is in Section 2. That section provides this -
Any colonial law which is orshall be in any respect repugnant to the provisions of any act of Parliament, extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such act of Parliament, or having in the colony the force and effect of such act, shall be read subject to such act. order or regulation, and shall, to the extent of such repugnancy, but not otherwise be and remain absolutely void and inoperative.
In other words, a colonial statute inconsistent with the terms of the imperial statute applying to that colony or dominion or possession was, to the extent of the inconsistency, invalid. That puts the matter substantially and shortly. The Statute of Westminster, by Section 2, first of all says that the Colonial Laws Validity Act is not to apply to a dominion law after the passing of this Act by the Parliament of a dominion, and then in order to take up the position which was left, namely, that there might have been some earlier imperial law which, under the provision which I have just outlined, would continue to apply to a colony and might continue to have the effect of invalidating some dominion law, sub-section 2 of section 2 goes on to say-
- No law and no provision of any law made after the commencement of this Act ‘by the ‘Parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such act, and the powers of the Parliament of a Dominion- shall include the power to repeal or amend any such act, order, rule or regulation in so far as the same is part of the law of the dominion.
The dominion therefore obtains, within the limits of its own constitutional powers, as I shall point out in the case of Australia, full capacity to amend imperial statutes which hitherto have become applicable to Australia.
If I may pause at that point, that provision has given rise to some extremely interesting speculations. It has been suggested by some people that the power given to the Parliament of a dominion to repeal or amend English acts and regulations which happen to have applied to that dominion, would enable the Parliament of the Commonwealth of Australia, in the event of the adoption of this section, to repeal the right of the Privy Council to grant special leave to appeal from the High Court of Australia or from any other Australian court. That is a question, of course, of some interest and of very great importance. On the face of it the adoption of Section 2 will confer that power because, while the right of the Privy Council to grant special leave to appeal from the dominion and colonial courts originally rested on the exercise of the royal prerogative, the royal prerogative was made statutory by the Judicial Committee Act 1844. Because it rests upon a statute, which in that sense applies to Australia, that statute can be repealed in its application to Australia by the Parliament of the Commonwealth. But that is still subject to a provision which honorable members will find later in section 8 of the Statute of Westminster - one of the sections which it is not necessary to adopt. It provides -
Nothing in this act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia otherwise than in accordance with the law existing before the commencement of this act.
That refers me at once to the Commonwealth Constitution on this question of appeal to the Privy Council. Honorable members will find in section 74 of the Constitution an express provision in the matter of such appeals; it is this -
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the high Court to Her Majesty in Council. The Parliament- that is, the Parliament of the Commonwealth - may make laws limiting the matters in which such leave may be asked, but proposed laws containing airy such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
As I understand this problem, that provision still stands; it is not repealed by the adoption of section 2 of the Statute of Westminster, because section 8 of that statute expressly provides that the Constitution is not to be altered except in accordance with the law existing before the Statute of Westminster was passed.
Mr Lazzarini:
– It can be altered only by a referendum of the people?
Mr MENZIES:
– The Constitution may be altered only by a referendum of the people. But if this Parliament at any time, whether or not the Statute of Westminster is adopted, decides that it wishes to limit the matters in which a petition for leave to appeal may be presented to the Privy Council, it may do so, subject to the provision that the proposed law containing the limitation shall be reserved by the Governor-General for His Majesty’s pleasure. The real effect of the new Dominion status is that the Ministers who would advise His Majesty as to whether he should or should not assent to such a reserved measure are the Ministers of the Commonwealth of Australia.
Mr Beasley:
– And he must accept the advice tendered to him.
Mr MENZIES:
– He would he in a position in which he would need to accept the advice of his Australian Ministers, and consequently by a combination of section 74 of the Constitution and the new Dominion status, the limitation on appeal to the Privy Council would in fact be a matter entirely within the determination of this Parliament and the Government that it controls. I am not professing to discuss the merits of any suggestion that might be made in the future with reference to the matter of appeal to the Privy Council; that is entirely controversial. M.y sole concern to-day is to point out, as fairly as I may, what I understand the existing constitutional position to be.
Section D, if T may say so, is also not without interest; though I am afraid I must confess that many of these matters are interesting to lawyers but not to those who have to suffer under them. It makes the following provision -
It is hereby declared and enacted that the parliament of a dominion has full power to make laws having extra-territorial operation.
If honorable members will bear with me, I should like to say a few words about this subject of extra-territorial legislation, because it is not without practical importance. It was thought for a long time that some special limitation was placed on the authority of colonial parliaments; for example, that although the Parliament of Great Britain could and did legislate for British subjects wherever they might be, and did not regard itself as being territorially restricted to, say, the three mile limit, a colonial parliament occupied a subordinate position - it did not carry with it all the ordinary powers of the British Parliament, but was restricted in some special way. That theory was overcome by certain decisions of the Privy Council many years ago, the effect of which was that a colonial parliament was not a delegate parliament but had plenary powers within its own jurisdiction. Subsequently a proposition was applied by the Privy Council in a case which went from New South Wales, to the effect that the territorial limit on the power of a colonial parliament was an extremely rigid one. The case was that of Macleod versus the AttorneyGeneral for New South Wales. In that case a very curious result followed theapplication of this territorial doctrine. The Parliament of New South Wales had passed a law dealing with theoffence of bigamy. It provided in the case of bigamy that the offence was to be regarded as having been committed wherever the second marriage might have taken place. I am quoting the provision in substance; I do* not ‘ profess that those are the identical words. Under this law, a man was prosecuted whose second marriage had taken place outside of Australia. His defence was “You cannot make a law which might make my marriage in, say, America, an offence against the law of New South Wales, because your jurisdiction is strictly limited to your own territory. Unless some act which you desire to regard as criminal occurs within your territory, it is not a. matter which falls within your jurisdiction.” The Privy Council agreed, in effect, with that view. This was as far back as 189.1. In giving its decision, the Privy Council read the New South Wales statute as if it said “ Wheresoever in New South Wales the second marriage takes place.” The result was that the conviction was quashed, and the gentleman in question went free of the charge of bigamy. 1
Mr Lazzarini:
– I presume that he returned to New South Wales ‘
Mr MENZIES:
– I do not know what he did. I have not followed his matrimonial story since; all I know is what I have gathered from the law reports. That very rigid conception of the territorial limits placed upon jurisdiction has, in fact, been very substantially modified, if not altogether destroyed, by later decisions. The most important of the later decisions in this matter is that given in the case of Croft versus Dunphy, which was decided by the Privy Council and is reported in 1933 Appeal Oases.I think that I ought to tell honorable members about that case, because it serves to introduce a slight element of humanity into an otherwise dry story. There was nothing “ dry “ about the case. As Lord
MacMillan said in delivering the judgment of the Privy Council, the facts were -
On Juno 10. 1920, the schooner Dorothy M. Smart sailed for “ the high seas “ from the French island of St. Pierre with a cargo on hoard of rum and other liquors, which are dutiable under Canadian law. The vessel was registered in Nova Scotia, and, with her cargo, was the property of the respondent, who is resident in Nova Scotia. On June 13, li)2t), the schooner, when at a distance of Hi miles from the coast of Nova Scotia, was boarded by the appellant, an officer in the customs service of the Canadian Government. The cargo having been found to consist of dutiable goods, the vessel and cargo were seized and taken into port.
As honorable members will have appreciated, the question at once arose ““Can the Dominion Parliament of Canada make a law enabling it to deal with a man eleven and a half miles off its coast, or is its power confined to territorial limits?” - which for this purpose would be regarded as three miles from its shore. The judgment of the Privy Council dealt with that matter. I wish to quote a couple of short passages from it, merely to illustrate how very great a distance had been travelled from the old rigid rule adopted in Macleod’s case. At page 162, their Lordships said -
It may be accepted as a general principle that States can legislate effectively only for their own territories. To what distance seaward the territory of a State is to be taken as extending is a question of international law upon which their Lordships do not deem it necessary or proper to pronounce. But whatever he the limits of territorial waters in the international sense, it has long been recognized that, for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory.
Mr Francis:
– To what distance?
Mr MENZIES:
– The answer to that depends on the word “ effectively.” The limit of your jurisdiction in relation to these matters, as I shall indicate shortly, is really the limit of your power to enforce your law, whatever that may be. It may be measured in terms of thousands of miles in some cases, and in terms of very much shorter distances in other cases.
Mr E J HARRISON:
WENTWORTH, NEW SOUTH WALES · UAP; LP from 1944
– Am I to understand that, in the case of the gathering of shell off the north coast of Australia, this Parliament can legislate for the protection of Australian interests to any distance seaward, if it can exercise effective control?
Mr MENZIES:
– I shall content myself by reminding the honorable member that long before the decision in the Croft case, and long before this express approval, of the idea that you might have considerable extra-territorial jurisdiction, in matters like fisheries, the point had been anticipated in our own Constitution, which, by paragraph x of section 51, provides that the Commonwealth Parliament shall have power to make laws with respect to “ fisheries in Australian waters beyond territorial limits”. To resume my very brief examination of Croft vors us Dunphy, may I read just one more passage. It is this -
Once it is found that a particular topic of legislation is among those upon which the Dominion Parliament ma.y competently legislate as being for the peace, order and good government of Canada, or as being one of the specific subjects enumerated in section 91 of the British-North America Act. their Lordships see no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully sovereign State.
I refer to that passage in order to demonstrate that some of the older ideas in regard to territorial limits, some of the ideas that were current when I first entered the practice of the law, have largely been dissipated by modern decisions. For the interest of those who care to conduct any research on this matter, I shall make further reference to a case which was decided in 1933 by the High Court of Australia : - The Trustees Executors and Agency Company versus the Federal Commissioner of Taxation, who, I, as a lawyer, am glad to say, is a valiant litigant. The report which appears in 49 Commonwealth Law Reports, page 220, contains some interesting examinations of questions relating to extra-territoriality which, in substance, lead to the conclusion that all the older ideas as to the territorial limits of the jurisdiction of dominion parliaments have now disappeared and that they may pass laws within the scope of their constitutional authority - in our case within, the scope of section 51 - and may give to those laws extraterritorial effect if they so desire. That does not mean that we, for example, may pass laws in Australia dealing with the conduct of Chinese in China or of Frenchmen in France; but we can pass laws within the headings allotted to us which will affect the conduct of Australian citizens whereever they may be and. to which they will become amenable as soon as they re-enter Australian jurisdiction. I hope I have succeeded in making a clear distinction between the two things.
Mr Nairn:
– For instance, we cannot legislate to regulate the actions of Japanese on pearling banks outside the three-mile limit?
Mr MENZIES:
– That may be so, but on certain pearling banks which we regard, internationally, as within our jurisdiction, we are competent to pass general rules to be observed. Our capacity to enforce those rules is, of course, an entirely different matter. The value of extra-territorial legislative power is not that it is intended to be used to tell foreigners what they should do, but that it places within our capacity the competence to make laws which, being laws for the peace, order and good government of our own country, may affect our citizens in relation to their conduct, although some of that conduct may take place outside Australia altogether. This is of’ particular significance in relation to revenue matters, for example. Where, at one time in my recollection, it was almost automatic when arguing a taxation case in the High Court, to take the point that taxation was extra-territorial, that is not now clone. It was an interesting argument that Inever knew to succeed.
Mr HOLLOWAY:
MELBOURNE, VICTORIA · FLP; ALP from 1936
– What relation would this have if applied to conscription for military service?
Mr MENZIES:
– I think that the power to pass extra-territorial Jaws might affect the problem of conscription. It is open to us to make laws which have a. coercive effect on Australian citizens, who may be out of our jurisdiction for a time but to which they would in hard fact be subject on returning to this jurisdiction.
The point I emphasize is that, irrespective of the provisions of the Statute of
Westminster, our power to pass extraterritorial laws has been developed and conceded in the courts in cases not one of which was decided by anything in the Statute of Westminster, for, at the time they were dealt with the statute did not exist or apply.
Mr Blackburn:
– What about Kingston versus Gadd?
Mr MENZIES:
– I have not referred to all the cases, for I am conscious of the fact that a great deal of what I have said is dull enough, and I did not want to add unnecessarily to it. The point I wish particularly to stress is that the section in the Statute of Westminster which declares that the parliament of a dominion has full power to make laws having extra-territorial operation does not make any real change in the present legal position, because exactly the same position had been developed by the decisions in the caseCr oft versus Dunphy and in the High Court Trustees case which were decided entirely irrespective of the statute. Honorable members have, therefore, had the melancholy satisfaction of having listened to me for the last ten minutes while I pointed out that section 3 does not really matter very much after all.
Section 4 reads : -
No act of parliament of the United Kingdom passed after the commencement of this act shall extend or be deemed to extend to a Dominion as part of the law of that Dominion unless it is expressly declared in that act that that Dominion has requested or consented to the enactment thereof.
That gives direct operation to one of the recitals to which I made earlier reference. In effect, it means that we cannot, without our consent, be affected by such legislation as the British Merchant Shipping Act 1894. In order to make assurance doubly sure, which, even the Parliamentary Draftsman occasionally does, that act is referred to in section 5 which reads : -
Without prejudice to the generality of the foregoing provisions of this act, sections seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act 1894. shall be construed as though reference therein to the legislation of a British possession did not include reference to the Parliament of a Dominion.
Sections 735 and 736 of that act confer power on the legislature of any British possession to pass laws repealing in whole or in part any provisions of the act relating to ships registered in a possession and relating to the coasting trade of a possession, but it was provided that such Jaws must be reserved for His Majesty’s pleasure. The legislation that has hitherto been passed by the Commonwealth Parliament in relation to navigation, and shipping has, as honorable members will recall, been reserved always for the Royal Assent. The effect of the section to which I have just referred is that that course will no longer be necessary.
Section 6 simply abolishes the necessity under the Colonial Courts of Admiralty Act for reserving certain laws for the Royal assent.
So much for the sections of the statute for the adoption of which the bill provides. I shall refer to the remaining sections of it very briefly. Section 7 has no significance for us. It relates to Canada. Section S confirms the view that the Commonwealth Constitution cannot be altered in any new way. Section 9 provides that the Commonwealth Parliament cannot go beyond its legislative powers because of anything contained in the statute itself and also provides that the concurrence of the Commonwealth will not be necessary to any law of the United Kingdom touching a matter which is exclusively within the jurisdiction of the States. The position of the States is to that extent protected.
Mr A GREEN:
KALGOORLIE, WESTERN AUSTRALIA · ALP; FLP from 1931; ALP from 1936
– Reverting for a moment to the subject of navigation. Under the Attorney-General’s newly discovered lack of power in regard to the three-mile limit because that is now within the province of the States, does he suggest that the Navigation Act would not apply within the three-mile limit?
Mr MENZIES:
– I am sorry that the honorable member should have referred to what he describes as some “ newly discovered lack of power “. I have not discovered anything of that kind. The framers of the Constitution discovered it, for they provided that in relation to fisheries Commonwealth power should be exercisable only beyond territorial limits. I cannot accept any responsibility for that. Plainly that provision leaves fisheries within the territorial limits under the control of the States. Nothing that I can say or do will affect that position. We have never purported to exercise, under our Navigation Act, any navigation powers except as part and parcel of our interstate trade and commerce powers. Consequently, we have never, as a Commonwealth,’ been in a position t i exercise power to deal with intra-state shipping. Nothing that I have said is newly discovered. I have dealt with matters which have been quite well understood for a number of years.
That is all that I desire to say on the details of the Statute of Westminster.
Mr Gregory:
– Why is the AttorneyGeneral omitting any reference to sections 8, 9 and 10 of the statute?
Mr MENZIES:
– Because it is not proposed in the bill to adopt those sections. I am obliged to the honorable member, however, for having drawn my attention to section 10 of the statute, which reads - 10. (1) None of the following sections of this act, that is to say, sections 2, 3, 4, 5 and (i, shall extend to a dominion to which this section applies as part of the law of that dominion unless that section is adopted by the Parliament of the dominion . . .
It is only necessary for us to adopt sections 2, 3, 4, 5 and 6. The remainder of the statute operates of its own force. The dominions to which section 10 applies are Australia, New Zealand, and Newfoundland. I think I am right in saying that none of these have adopted this section.
Mr ARCHIE CAMERON:
BARKER, SOUTH AUSTRALIA · CP; LP from 1944; LCL from 1951; LP from 1954
– Are not New Zealand and Newfoundland about to adopt it?
Mr MENZIES:
– I have seen a statement to the effect that New Zealand proposes to do so ; but so far as my information goes, it has not( in fact, done so. The Dominion of Newfoundland, as honorable members are aware, was under the control of a commission for some time, but what has happened lately in that connexion I am not in a position to say.
With sincere apologies for having taken so long over the matters of detail to which I have given attention, I propose now to pass on to some brief general considerations. I put these forward because I know that quite a number of responsible people are troubled about the proposal to adopt the Statute of Westminster for the reason that they feel that it may give some support to the idea of separatism from Great Britain. I want to relieve their minds on that subject. I think such relief can be obtained by a little clear and detached thinking, which will indicate to these people that what they fear will not be effected in any way by the legislation I am now introducing.
Mr Beasley:
– What is it that they fear ?
Mr MENZIES:
– They fear, and it is a. very natural fear, that the adoption of the Statute of Westminster may suggest some sort of aggressive independence of Australia from Great Britain. They regard it as a sort of hostile act, or as a gesture of defiance of Great Britain - a gesture to the effect that “we want to assert ourselves and insist upon underlining our independence “. They think it might suggest, to use a picturesque phrase, some desire to “ cut the painter “. 1 do not underestimate the sincerity of these people, but I invite honorable members to consider quite closely a. distinction that I shall submit to them. It is the distinction between the disadvantages, if there are any in the adoption of these particular sections of the statute, and the disadvantages of the doctrine which underlies the statute itself. They are two entirely different matters.
I think that the business of devising the Balfour Declaration in 1926, and the business of devising and drafting the. preamble of the Statute of Westminster in 1931 were both open to very grave criticism, and I shall state in a. few moments what, in my opinion, that criticism is. But whatever criticism I may feel those things are exposed to, they have been done ; nobody to-day can recall the Balfour Declaration of 1926, and nobody to-day can blot the Statute of Westminster from the statute-book of the United Kingdom. These things have been done ; they are purely a cold matter of fact, and for me to complain that they should not have been done, or to offer criticism of them, is simply to beat the air. What I have to consider in regard to this legislation is the effect of adopting these particular sections in the case of Australia, and that is a much narrower question. It is not a question which should provoke general arguments, of a kind that might have been engaged, in in 1926.
Mr Brennan:
– You said it was a disservice to the nation.
Mr MENZIES:
– I believe that the- 1926 declaration, followed up as it was. by subsequent action, was, in substance, a grave disservice. But that does not prevent me from saying that these thingshave been done.
Mr Beasley:
– Why do you say that they are a great disservice?
Mr MENZIES:
– I shall indicate my reasons very briefly, and, I hope, quite dispassionately - I know that honest people can disagree on this matter. In the first place the whole of this process of devising a written formula was open to the criticism that it reduced to cold legal form, and therefore to -a relatively rigid form, a relationship, some of the supreme value of which has always been its vagueness and elasticity. That is the first criticism. I was very much struck by a passage in an article written by a celebrated Australian scholar: -
Our nation lias always excelled in political artistry rather than in political science, and the artist’s skill can never be reduced toformulae.
I think that is a pretty profound truth on all matters of constitutional relationships.
The next criticism I would offer is that the process - I am talking about the 1926-30 process - emphasized the legal aspects of independence, and, therefore, tended to give far too little weight and significance to the family relationship, which is a relationship well above the law.
Mr Brennan:
– I suggest that the legal aspects were developed only after the declaration of 1926.
Mr MENZIES:
– I suggest not. My criticism is criticism of the whole of the 19,26-31 process, and that begins and has its roots in what I would have thought was a misguided attempt in 1926 to reduce to written terms something which was a matter of the spirit and not of the letter.
My next criticism is that, to some extent, the whole process of self-assertion ignored the physical facts. It is a very fine thing to state loudly that I am politically independent - I believe in being politically independent; my difference from those acting in 1926 and 1930 simply is: I do not feel it necessary to talk about my political independence; I know it is there; but for me to go talking about political independence, talking almost provocatively at a time when my physical, my military independence, is by no means so clear, is to provoke obvious criticism and invite obvious difficulty.
My final criticism of the precess I have been referring to - and I offer these criticisms in an historical sense, because 1 am in favour of adopting the statute - is that it tended too much to produce problems without solving them. That may seem a little cryptic, but let me explain what is in my mind. These are some of the grave questions that I submit very earnestly to the consideration of honorable members on both sides of the House. In the first place it produces the problem of reconciling the most favored nation clause in foreign treaties with the whole principle of Imperial preference. I wonder if honorable members clearly realize that Imperial preference is able to exist as one of our tariff doctrines simply because other countries have agreed that we are not all to be regarded as independent nations. If they regarded all British countries as completely independent nations they would be in a position to say, “You have a treaty with us under which you are bound to give us most favoured nation treatment. Ergo, give us the preference Yon accord to New Zealand and Canada “. Our answer is “Oh, no; it is true we are independent and separate nations, but there is a little qualification on that due to our common allegiance to a commoncrown which justifies us in saying that, for tariff purposes, the other dominions are not foreign and independent, but stand on a special footing in relation -to ourselves. “
Mr BRENNAN:
UAP
– A. very good answer!
Mr MENZIES:
– It ‘is a plausible answer, and we are fortunate that the world has agreed to receive our plausible answer with a degree of complaisance. I mention it, however, because, if we talk about complete independence as if we were foreign nations, there are a few problems of the kind I have just referred to, and some important ones to which we shall have to devote a lot of attention. [Leave to continue given.]
The second problem which, I suggest, has been produced without being solved is that of how far a dominion owing allegiance with other dominions to a common crown can be neutral in a war to which that common crown is a party. 1 am not going to enter into a controversy about this, but I remind honorable members of it because, as they know very well, it is one of the live problems that might become very much more alive in less happy circumstances than those in which we live at the moment.
Finally, I confess to a feeling of great doubt as to the virtue of a bold declaration, such as is found in the Balfour Declaration, that we are equal in all things, equal in all ways with, for example, Great Britain, in all matters of foreign policy,, when, we know perfectly well that the completely independent conduct of foreign policy by each individual member of the British Commonwealth of Nations would lead to nothing but chaos and disaster.
My leader and colleague, the Prime Minister, has just come back from the Imperial Conference at which one of thegreat achievements, not yet perhaps recognized, but, nevertheless, one of great moment, has been the production of a united declaration by all members of the British Commonwealth of Nations on the Question of foreign policy. I can well imagine how difficult it is to take all the various views existing in the variouscountries and reconcile them on a matter of foreign policy, and to my mind the moment we said in the, Balfour Declaration that we were all equal with each other, all with the same authority, power and responsibility on matters of foreign policy, we created a problem, and a’ very real one, to which a great deal of attention will have to be given within the next ten years; the problem of translatingwhat is at the moment very little more than a rhetorical statement into a working statement, into something which will enable us to go on as a united British Commonwealth of Nations, while at, the same time giving as much force as possible to the individuality and independence of ear-h member of that commonwealth.
All of these criticisms I have been referring to, 1 want to suggest to those who are troubled about this legislation, are now too late. That is why 1 said I was referring to them as a matter purely of historical interest, because for better or for worse we have the Balfour Declaration and the history . of 1926 and 1930, and the only question that remains is whether we are to proceed upon the footing that those are the facts, and get whatever relatively minor advantages are to be obtained by adopting the particular provisions of the Statute of Westminster to which I have referred.
Mr Blackburn:
– In what substantial respect do the sections we have been asked to adopt now alter the practice that existed for a great many years even prior to the war?
Mr MENZIES:
– I think they do so to a very trifling extent. In the case of two or three sections, possibly doubt is removed by a clear declaration, but in point of practice, I think the differences are negligible. That is why I said at the beginning of my speech that this postwar development has been a development of theory rather than of practice. In point of practice the real and administrative legislative independence of Australia has never been challenged, since the Commonwealth was created. It did not need any new theory to tell us that.
I think, and I suggest to the House, that, having regard to these circumstances, we ought at this stage to recognize the facts, and to come into line uniformly with the other dominions. I think that on all these matters of constitutional doctrine and practice as rauch uniformity as possible throughout the British world, should be aimed at.
Above all things, it seems very desirable indeed that when Australia adopts the Statute of Westminster, as it unquestionably will sooner or later, it should adopt it in circumstances of friendliness, without passion and without heat. This is the time to adopt it when we have no particular reason to think we may need it. That may seem rather .a strange statement, but it is, nevertheless, true. I should be sorry to think that the day would come when, in the heat of some argument, some intra-imperial controversy, this Parliament might be invited to adopt the
Statute of Westminster as a sort of weapon to be used in the course of such discussion. Let us adopt it to-day in terms of deliberation, in terms of complete amity, and in circumstances in which nobody will imagine that its adoption will have anything to do with feelings of separatism or undue assertion of our interests at the expense of those of any other part of the British Empire.
Mr Brennan:
– And not on the motion of a Labour government.
Mr MENZIES:
– I was not thinking of a Labour government in general.
Finally, we are sometimes inclined to confuse the end of a road with its beginning. Some of us have talked about these matters as if we had concluded a great period of our constitutional history. I want to remind honorable members that this adoption, and the whole of the constitutional process to which I have been referring, merely begin a series of responsibilities. We do not conclude this matter simply by saying, “ That is the end of that chapter “. It is not the end of the book, and the book is one in which we have to write. We have now to deal with a very much more difficult problem than that of determining and asserting our own rights. We have to approach the problem of reconciling our own independence - all our own independent, national aspirations - with all the duties that attach to our membership of the British Commonwealth of Nations. That is the big problem of practical statesmanship for the future’. That is the real constitutional problem for the future.
We are not merely the Australian Commonwealth; we have also an association with other members of the British Commonwealth ; and it is because we have that association, and because the independence of every one of us is, to an extent, dependent upon the independence of the other that we are a Commonwealth of Nations, and. not a mere alliance. That, I believe, is the thing we must constantly keep in mind, because, if we degenerate in the British world to being merely friendly allies, who may cast off the alliance to-morrow, our very security in the world, to say nothing of all those other intangible elements which mean so much to us, will be threatened. That, I think, is the task we approach when, by adopting this statute, we conclude this particular post-war constitutional chapter.
We British people, wherever we may be - -in Australia, Canada, South Africa or . New Zealand, or in the United Kingdom itself - are extremely fortunate to-day, because we live in a state of relative happiness in a most unhappy world. The best thing Ave can say for ourselves, and for the future that we approach when we deal with legislation of this kind, is what is frequently repeated at an Oxford club founded in commemoration of Sir Walter Raleigh, one of the first of the builders of this British Commonweal th. and not the least distinguished of its founders. I refer to the observation made by him 300 years ago now used - by the Raleigh Club at Oxford as an opening invocation : -
Thou that of thy free grace didst build up this Britannick Empire to a glorious enviable heighth, with all her daughter islands about her, stay us in this felicitie
Debate (on motion by Mr. Brennan) adjourned.