Australian Constitutional Independence and Law in the Twentieth Century

Timeline

The lecture covers Australian Constitutional Independence and Law in the 20th Century, addressing key events and legal developments that shaped Australia's legal and political landscape.

Key Dates and Events

• 1901: Federation of Australia under Edward VII.

• 1902: End of the Boer War.

• 1910: George V becomes King.

• 1914-1918: First World War.

• 1917: Russian Revolution.

• 1919: Treaty of Versailles; Helen Kirtland.

• 1920: Establishment of the League of Nations.

• 1926: Balfour Declaration; Isaac Isaacs.

• 1929: The Great Depression.

• 1931: Statute of Westminster.

• 1936: Edward VIII, followed by George VI.

• 1937-1945: Second Sino-Japanese War.

• 1939: Start of World War II (European War).

• 1940: North Africa conflict.

• 1941: Germany invades USSR; Pearl Harbor and US entry into WWII.

• 1942: Fall of Singapore during WWII; Statute of Westminster Adoption Act.

• 1945: End of World War II; United Nations established; Start of the Cold War.

• 1949: Chinese Revolution; Menzies won federal election.

• 1950-1953: Korean War; Communist Party Dissolution Act.

• 1952: Elizabeth II becomes Queen.

• 1955: Beginning of the Vietnam War.

• 1964: US enters the Vietnam War.

• 1975: End of the Vietnam War; The Dismissal.

• 1982: Canada Act.

• 1986: Australia Acts.

• 1989: Fall of the Berlin Wall.

• 1991: Collapse of the USSR; Gulf War.

• 1988: First Fleet Re-enactment, Sydney Harbour.

The Early Federation

• Nationalism was weak at Federation.

• A unifying sentiment of race was present.

• The White Australia Policy was implemented.

• Divisions existed with London (pre-1942).

Key Legislation

• Pacific Island Labourers Act 1901 (Cth).

• Immigration Restriction Act 1901 (Cth).

• Post and Telegraph Act 1901 (Cth) s 15.

White Australia Policy

• Proposal of an English dictation test influenced by Natal.

• Dictation test in ‘any European language’ was later amended to ‘any prescribed language’.

• Immigration Restriction Act 1905 maintained the ‘European’ language requirement.

Early Interpretation of the Constitution

The Griffith High Court (1903–1919) protected States’ rights.

Significant constitutional doctrines

• Immunity of instrumentalities.

• Reserve powers.

States’ Rights: The Engineers' Case

Amalgamated Society of Engineers v Adelaide Steamship Company (1920) 28 CLR 129 was a significant case regarding states' rights.

• The Federal Parliament's power to make laws relating to industrial disputes beyond the limits of one State that bound the States as employers was affirmed.

• The court determined that an industrial dispute existed between the Engineers’ Society and the Western Australian Government.

Outcomes of the Engineers' Case

• Rejection of the doctrine of implied prohibitions and State reserved powers.

• Federal laws prevail over inconsistent State laws.

• The powers in the Constitution are to be interpreted literally.

The High Court of Australia: 1930s

Key Figures

• Sir Isaac Isaacs: 1906-1931, Chief Justice: 1930-1931

• Sir Frank Gavan Duffy: 1913-1935, Chief Justice: 1931-1935

• Sir George Rich: 1913-1950

• Sir Hayden Starke: 1920-1950

• Sir Owen Dixon: 1929-1964, Chief Justice: 1952-1964

• Herbert Vere Evatt: 1930-1940

• Sir Edward McTiernan: 1930-1976

• Sir John Latham Chief Justice: 1935-1952

The White Australia Policy and the Gaelic Test

Egon Kisch Case

• 1933: Egon Kisch was refused entry to Australia for a Peace Conference.

• Evatt J held Kisch’s exclusion was not justified in R v Carter; Ex parte Kisch (1934) 52 CLR 221.

• Kisch was then tested under the Immigration Act 1901 (Cth) in Scottish Gaelic, which he failed, leading to his arrest.

• Albert Piddington KC argued that Gaelic is not a ‘European language’.

• The High Court agreed in R v Wilson; Ex parte Kisch (1934) 52 CLR 234 (Rich, Dixon, Evatt, McTiernan JJ: Starke J dissenting).

Path to Constitutional Independence

• 1919: Treaty of Versailles.

• 1926: Balfour Declaration.

• 1931: Statute of Westminster.

• 1942: Statute of Westminster Adoption Act.

Murder on HMAS Australia (1942)

• Stoker Riley was killed.

• Stokers Gordon and Elias were arrested and court-martialed in New Caledonia.

• They were found guilty and sentenced to death.

• An application to the High Court failed.

• The Naval Discipline Act 1866 (UK) was applied because federal defence legislation did not cover the matter.

Statute of Westminster Adoption Act 1942 (Cth)

• Royal Australian Navy personnel were subject to British naval law.

• Australia had no desire to execute the men.

• The Curtin Labor Government felt ‘powerless to intervene’ due to Australia’s failure to ratify the Statute of Westminster.

• King George VI intervened.

• The Statute of Westminster was ratified on 9 October 1942, backdated to 3 September 1939.

The Communist Party Case: Background

1940s and 1950s

• Public fear and hostility towards communism.

• Menzies won the 1949 federal election, promising to ban the Australian Communist Party.

• The Communist Party Dissolution Act 1950 (Cth) commenced on 19 October 1950.

Communist Party Dissolution Act 1950 (Cth)

• Preamble outlined the Commonwealth’s power to deal with Communists.

• Addressed the case ‘against the Australian Communist Party’ (ACP).

• Stated the necessity of the Act’s provisions for Australia’s security and defence.

Operative provisions

• Dissolved the Australian Communist Party.

• Declared bodies to be unlawful associations by the Governor-General.

• Allowed individuals to be declared communists by the Governor-General.

• Limited grounds to overturn a declaration.

• No scope to review the Governor-General’s decision.

The Communist Party Case and Referendum

• Hearing lasted 24 days, commencing 14 November 1950.

• Involved 10 silks and 12 junior counsel.

• On 9 March 1951, the majority held the Act ‘wholly invalid’; Latham CJ dissented.

• On 13 March 1951, the Prime Minister addressed the House of Representatives.

• On 22 September 1951, a proposed constitutional amendment (Add s 51A to Constitution) was put to a referendum.

• Australia narrowly voted 'No' (50.56%).

Australian Communist Party v Commonwealth (1951) 83 CLR 1

• Judicial review, referencing Marbury v Madison, was applied.

• ‘A stream cannot rise higher than its source’ (at 258).

• Constitutional facts.

• Scope of Commonwealth legislative powers.

• Rule of law.

The High Court of Australia: The Barwick Court

• Sir Garfield Barwick: Chief Justice: 1964-1981

• Sir Victor Windeyer: 1958-1972

• Sir Anthony Mason: 1972-1995, Chief Justice: 1987-1995

• Lionel Murphy: 1975-1986

• Sir Ninian Stephen: 1972-1982

• Sir Harry Gibbs: 1970-1987, Chief Justice: 1981-1987

The Dismissal

• 1949–72: Menzies and Liberal/Country Party coalition continuously in power.

• 2 December 1972: Australian Labor Party secures 67 seat majority in the House of Representatives. Gough Whitlam is Prime Minister.

• Senate election not synchronic.

• Half elected in November 1967 and November 1970.

• Coalition and ALP have 26 Senators each.

Path to the Dismissal

• 9 February 1975: NSW Senator Lionel Murphy appointed to High Court.

• 27 February 1975: Independent Cleaver Bunton appointed to Senate.

• 30 June 1975: Queensland Senator, Bertie Milliner, dies in office.

• 2 July 1975: Deputy PM Jim Cairns sacked.

• 3 September 1975: Hostile ex-ALP member Pat Field appointed.

• 14 October 1975: Minister for Minerals and Energy Rex Connor resigns.

Events of the Dismissal

• Opposition Senators, and Bunton and Field, rejected the government’s supply bills.

• Returned bills to the House of Representatives, demanding an election.

• The Opposition uses the Senate to force an election despite the Australian Labor Party having a clear majority in the House of Representatives.

• Whitlam refuses to call an election.

• Sought advice from Sir Garfield Barwick and Sir Anthony Mason on the power to dismiss a Prime Minister.

• Confidential correspondence with Queen’s private secretary, Sir Martin Charteris.

• 11 November 1975: Kerr met Whitlam and Opposition Leader Fraser separately.

• Whitlam was dismissed, Fraser was commissioned as Prime Minister and advised a double dissolution election.

Post-Dismissal

• General election, 13 December 1975: Landslide win to Coalition.

• Referendum, 1977: Approval of Menzies-McLarty Convention.

• Replacement senator must be appointed by the State Parliament from the same political party.

• The same term expiration rule was applied, and federal judges were required to retire at 70 (Remember Justice McTiernan!).

The Australia Acts

• The precursor was the Canada Act 1982 (UK & Can).

• Conferences in 1982 and 1984 involved the Prime Minister and Premiers of six States.

• Uniform legislation to make Australian law independent.

• Australia (Request and Consent) Acts 1985 (Cth) + uniform State legislation.

• United Kingdom and Australian parliaments to pass legislation.

Ending Privy Council Appeals

• 1968: Appeals ended from the HCA on Constitutional matters and Federal jurisdiction.

• 1975: Appeals from High Court on State matters stopped.

• 1978: The High Court was no longer bound by Privy Council decisions.

• 1986: Terminating appeals from State Supreme Courts.

• 1987: The Privy Council determines the last Australian case.

What did the Australia Acts 1986 (Cth & UK) achieve?

• United Kingdom Parliament’s power to legislate for Australia terminated: s 1.

• Restraints on State legislative powers removed: ss 2–3.

• Qualifications on State legislative powers: ss 5–6 - manner and form restrictions of Colonial Laws Validity Act 1865 (UK) continued.

• The Queen acts on the advice of a State Premier in respect of her powers for a State: ss 7, 11.

• Privy Council appeals end: ss 11, 16.

The Mason Court, 1987-1995

• Sir Anthony Mason, Chief Justice + Justices Brennan, Deane, Dawson, Toohey, and Gaudron.

Significant legal revisions

• Freedom of interstate trade (s 92) interpreted as prohibiting protectionism.

• Prohibition of discrimination on basis of interstate residence (s 117).

• Freedom of political communication.

• Recognition of native title in land.