Western Australia's entry into the Australian Commonwealth occurred at a critical stage in the Federation process. Unlike the eastern colonies, which had participated in the constitutional conventions and had approved the Constitution Bill through referendums in 1898 and 1899, Western Australia joined the process only after the draft Constitution had already been settled and transmitted to London for enactment by the Imperial Parliament.
This late entry placed Western Australia in a unique constitutional position. The colony was not simply approving a document prepared solely within Australia; it was joining a process in which the proposed Constitution had already entered the Imperial legislative sphere. The British Parliament was examining the Bill, considering its legal implications, and determining the form in which it would ultimately become law.
The clearest evidence of Western Australia's understanding of this process appears in the language of the Australasian Federation Enabling Act 1900 (WA). In defining the Constitution that was to be submitted for approval, the Act referred to:
"The draft of a Federal Constitution for Australasia ... subject to the amendments of the Imperial Parliament."
This wording is significant. It recognises that the Constitution being accepted by Western Australia was not an untouchable colonial enactment, but a draft constitutional instrument awaiting the final legislative action of Westminster.
Western Australia's Parliament therefore acknowledged a constitutional reality that had existed throughout the Federation movement, the Australian colonies could negotiate and approve the terms of Federation, but the legal creation of the Commonwealth still depended upon an Act of the Imperial Parliament.
The Imperial Parliament's role was not merely ceremonial. Under the constitutional arrangements of the British Empire in 1900, colonial legislatures possessed powers granted by Imperial legislation and remained subject to the constitutional supremacy of Westminster. The doctrine expressed through the Colonial Laws Validity Act 1865 recognised that colonial laws inconsistent with Imperial Acts extending to the colony could be invalid. The creation of a new Commonwealth therefore required an Imperial statute capable of establishing the new constitutional order.
The late involvement of Western Australia also provides evidence that the other colonies were aware, or ought reasonably to have been aware, of Westminster's scrutiny of the Constitution Bill. By the time Western Australia enacted its Federation legislation, the Bill had already reached London and was being examined by the Imperial authorities. The negotiations surrounding the Bill were not hidden from colonial governments; they were part of the known constitutional process by which Federation would be achieved.
The Australian delegates in London were not present merely to deliver an Australian Act for automatic approval. Their role was to negotiate with the Imperial Government and Parliament to secure enactment of the Constitution while protecting the essential features of the federal settlement. The discussions over section 74, concerning appeals to the Privy Council, demonstrate that the Imperial Parliament considered the legal implications of the Constitution and retained authority to make adjustments before enactment.
The same constitutional understanding explains why certain changes could occur before Royal Assent. The removal of the words "This Act shall bind the Crown" from the draft Constitution and the alteration of the Privy Council appeal provisions were not amendments made after Federation; they were changes made during the process by which the Constitution became law. The colonies had approved a constitutional proposal, but the legal instrument creating the Commonwealth was the Commonwealth of Australia Constitution Act 1900 (UK).
This process also preserved the position of the Crown. The Imperial examination of the Bill was not only concerned with drafting and political compromise; it reflected the constitutional responsibility of the Imperial Parliament to ensure that the new constitutional settlement operated consistently with the Crown's prerogative and imperial constitutional arrangements.
The Crown was not merely a symbolic element within the proposed Commonwealth. The Constitution vested executive authority in the Queen, preserved the Governor General as the Queen's representative, and maintained specific constitutional links with the Imperial Crown, including the limited judicial connection preserved by section 74.
Therefore, Western Australia's late admission provides an important piece of constitutional evidence. Its legislation openly recognised that the Constitution was a draft subject to Imperial parliamentary action. The other colonies, having participated in the same Federation process and knowing that enactment depended upon Westminster, operated within the same constitutional reality: Australian agreement created the political foundation of Federation, but the legal creation of the Commonwealth remained dependent upon an Imperial Act enacted by the Parliament of the United Kingdom.
The final Constitution was therefore both Australian and Imperial in origin. It represented the will of the Australian colonies and electors, but it came into legal existence through the authority of the Imperial Parliament, whose scrutiny ensured that the constitutional settlement remained consistent with the wider legal position of the Crown.
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