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Introduction

The issues of Australian legal independence are of great importance in ascertaining the exact time when Australia acquired its legal liberty. For many years, the British colonial legal matters were passed on automatically to their colonies (Hayo & Voigt, 2014). As such, all the Australian legal provisions were from their colonizers and even the few provisions that have been developed were in accordance with the British legal guides. This situation notwithstanding, the full legal independence of this country have not been fully realized because of barriers such as the constitution (Hayo & Voigt, 2014). It is, therefore, necessary that the issue is reflected on with details giving an account of how it has developed to today.

According to Oliver (2005), to ascertain the actual time of Australian legal autonomy is a controversial issue whose genuine answer is hard to obtain. This is so because the independence depends on the definition given in terms of legislative, judicial and executive dimensions. The assertion is that the three took place at different times which translates to evolutionary legal independence as opposed to revolutionary (Kelly, n.d.). Depending on the dimension of the definition used, this independence has occurred or is due to occur. The independence arguably occurred in the period from 1901 to 1986 (Natoli, 2011). According to Kelly (n.d), these dates are in accordance with the majority stand in the case of Sue vs. Hill giving an implication that Australia had obtained liberation from the British bonds. However, the case refuses to mention the specific date and thus the perception of non-existence of a date is created as suggested by Callinan in his obiter (Natoli, 2011). Failure to ascertain a date is an insinuation that Australia is still affiliated to Britain a situation that limits it from absolute autonomy.

Owing to the lack of autonomy, domestic laws are hardly passed because they are declared invalid for the presence of inconsistency with principal laws (Kelly, n.d.). Such invalidations gave rise to the famous ‘repugnancy doctrine’ which is applied to all Australian domestic legislations (Natoli, 2011). The problem presented in such a case is the lack of apparently legal independence of Australia. This insufficiency occurred because of the shielding of all sources of law in Australia by Britain. As Natoli (2011) asserts, whenever any colonies attempted to develop their laws, the repugnancy doctrine was applied, and the attempts were greatly frustrated. With the desire for increased freedom became imminent in Australia, some passionate justices gave the correct interpretation of the repugnant doctrine. A good example of such justice was Boothby J of South Australia (Natoli, 2011). The drive of coming up with reasonable laws by refutation of repugnancy doctrine led the rise of CLVA (Colonial Laws Validity Act) (Mohr, n.d.).

The act gave the Australians the grounds on which they could invalidate or modify some of the legislations passed on them colonially (Mohr, n.d.). However, the laws passed down on the Australians were deemed incapable of being inconsistent with the principal legislation. This act aided in making the colonial legislations legally right in attempts to circumvent any alteration on such legislations. In addition to the Act, the British Parliament still retained the powers to pass laws in Australia and to supersede and amend colonial legislations (Natoli, 2011). Owing to these facts, it is still evident that no legal independence that was enjoyed by the Australian at this stage.

The next phase was during the federation followed by the Australian constitution enactment (Natoli, 2011). This period gave an emotion of the possibility of Australian liberation. During this time, some liberation from the fixated governing of the CLVA was experienced. However, Australia could not resist the colonial legislation that was imposed on them by overriding force. The evidence of such a scenario is seen in the Union Steamship Company case (Sevta, n.d.). Some scholars such as Murphy J felt that this period presented some degree of legal independence in Australia (Natoli, 2011). The justification for this assertion is based on the approval of the constitution by the Australian natives. During this period, Commonwealth inauguration occurred marking the seizure of Imperial Parliament in United Kingdom. Murphy’s assertion was repudiated in China Shipping Company case (Natoli, 2011). The assertion was further repudiated in Nolan with the majority noting that Australia did not reap independence at Federation. As such, Australia did not have legal liberty at the time of federation.

After federation, there came the period of imperial conferences. These conferences took place between 1917 and 1930 (Natoli, 2011). For the first time, Australia was considered among the autonomous nations under the imperial commonwealth. However, this autonomy did not show practically because of the limitations presented by the repugnancy doctrine. During the Imperial Conference held in 1923, Australia was given authority to deliberate foreign affairs. The Australian officials, as opposed to British officials, were officially endowed with the mandate of advising the Governor General (Natoli, 2011). The Governor was however unable to repudiate potential legislations because of the British controls.

To add on that, Australia was unrecognized by the international community as an autonomous legal entity (Natoli, 2011). This assertion is evident from the lack of invitation to the conference held in United States on limitation of arms. A sovereign country must be recognized as such by the international community (Natoli, 2011). Lack of invitation of Australia to the conference held in United States simply depicted that the country was not recognized as a sovereign one by the international community. As such, Australia was not yet legally independent at this stage.

The imperial conference held in 1926 presented significant milestones on the way to legal independence (Natoli, 2011). To start with, Australia was acknowledged as an entity that is free from British subordination. In the second instance, Australia was allowed to enjoy entering into treaties with other sovereign nations. In the third instance, there was envisioned that the application of British law would be possible after a categorical request is made. This envisions realized during the Imperial Conference held in 1930. The Commonwealth executive was also given full independence through the elimination of the power of British in invalidating legislations (Sevta, n.d.). According to Windeyer and Wheare (2004), domestic ministers were given the mandate of either electing or dismissing the Governor General. The General could now be appointed from native residents. All these changes presented a significant achievement in the fight for legal independence.

The imperial conference period came to an end in 1930 and 1931; the Westminster Statute was enacted (Windeyer & Wheare, 2004). This move marked the most significant milestone in the Australian struggle for legal independence. Commonwealth was set free from the CLVA repugnancy doctrine. For this reason, Australia was able to lay down the law in the extraterritorial manner (Windeyer & Wheare, 2004). It also gained the power to modify or abolish British legislation in exception of the Constitution. The judiciary became significantly independent when the High Court was given the legal ability to consent to or discard appeals. Although the British still legislated for Australia, it was through the request and approval of the government. At this point, Australia was termed as a sovereign country by other nations of the world. This independence is termed by some scholars as legislative independence; others call it effective independence while others call it legal independence.

Compared to other countries, for example, Canada, Australia was not hasty in abolishing its affiliations with Britain. Australia proposed modification of the Westminster Act in an assertion that there was a need for coming up with domestic legislation affirming the operation of the Act. The reasons for the prolonged affiliation with the British were; trade, ethnic affinity, defense, cultural affinity and investment (Oliver, 2005). The enactment of the Act was followed by the inception of Australian acts that represented the true legal independence of this nation. In this process of legal independence, there is existence of some barriers that prevent the nation from obtaining legal independence. The first barrier is the presence of constitutional monarchy. The second barrier is the presence of ability to hear appeals in the Privy Council. These barriers link Australia with Britain hence limiting the extent of its legal autonomy.

Conclusion

In conclusion, Australia has undergone a long process in attempts to gain full legal independence from that of its colonizers: the British. During this process, it has undergone several phases such as the phase of repugnancy doctrine, the CLVA phase, the Confederation conferences phase, and the phase of Westminster Statute. The phase of repugnant doctrine greatly frustrated the attempts of the Australians in obtaining their legal independence. When they found a loophole in this doctrine, the British enacted the CLVA which to some extent presented further difficulty. Regardless of a feeling that the country is legally independent, some barriers limit this feeling. The barriers are the constitutional monarchy that was passed down from the British and the presence of Privy Council of appeals (Oliver, 2005). All these issues have been elucidated in details in the above essay.

References

Hayo, B., & Voigt, S. (2014). Mapping Constitutionally Safeguarded Judicial Independence-A Global Survey. Journal Of Empirical Legal Studies, 11(1), 159-195. doi:10.1111/jels.12038

Kelly, M. The People, The Queen, and Australian Independence. SSRN Journal. doi:10.2139/ssrn.1147553

Mohr, T. The Colonial Laws Validity Act and the Irish Free State. SSRN Journal. doi:10.2139/ssrn.1481738

Natoli, C. (2011). Legal Independence in Australia (1st ed., pp. 65-73).

Oliver, P. (2005). The constitution of independence. Oxford [UK]: Oxford University Press.

Sevta, P. Doctrine of Repugnancy. SSRN Journal. doi:10.2139/ssrn.2245805

Windeyer, W., & Wheare, K. (2004). The Statute of Westminster, 1931. International Affairs (Royal Institute Of International Affairs 1931-1939), 13(2), 282. doi:10.2307/2603164

 

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