Statute of Westminster Adoption Act 1942

Statute of Westminster Adoption Act 1942
Parliament of Australia
An Act to remove Doubts as to the Validity of certain Commonwealth Legislation, to obviate Delays occurring in its Passage, and to effect certain related purposes, by adopting certain Sections of the Statute of Westminster 1931, as from the Commencement of the War between his Majesty the King and Germany
Date of Royal Assent	9 October 1942
Date commenced	9 October 1942 (retroactive to 3 September 1939)
Amends
1986 (minor)
Related legislation
Australia Act 1986
Status: Current legislation

The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the legislative independence of the various self-governing Dominions of the British Empire. The Statute of Westminster allowed the Dominion parliaments and governments to act independently of the British Parliament and Government.

With the passage of the Adoption Act, the British Parliament relinquished almost all of its authority to legislate for the Commonwealth, making Australia a de jure sovereign nation. The adoption was made retroactive to 3 September 1939, when Australia entered World War II. Thus, Australia reckons 3 September 1939 as the date of its independence.

The Act is more important for its symbolic value than for the legal effect of its provisions. While Australia's growing independence from the United Kingdom was well accepted, the adoption of the Statute of Westminster formally demonstrated Australia's independence to the world. It also symbolised the shift in Australia's foreign policy from a focus on the United Kingdom to the United States.

Background

Australia's progression to effective independence was gradual and largely without incident.

New South Wales was founded as a British colony in Sydney in 1788. Other colonies split away from New South Wales or were separately established over the Australian continent in the ensuing decades. The colonies became self-governing during the second half of the 19th century, starting with Victoria in 1852, although well before this time, all of the colonies had non-elected Legislative Councils to advise their respective Governors on matters of administration.

When the Commonwealth of Australia was formed with federation of the six colonies in 1901, following royal assent of the Commonwealth of Australia Act 1900, it became classified as a Dominion of the British Empire. This accorded Australia somewhat greater independence, though it was legally a self-governing colony. After the end of World War I, each of the Dominions (including Australia, Canada, New Zealand and South Africa but not Newfoundland) independently signed the Treaty of Versailles, but under the collective umbrella of the British Empire, and each became a founding member of the League of Nations in its own right. This was an important international demonstration of the independence of the Dominions.

The Statute of Westminster

During the 1926 Imperial Conference, the governments of the Dominions and of the United Kingdom endorsed the Balfour Declaration of 1926, which declared that the Dominions were autonomous members of the British Empire, equal to each other and to the United Kingdom. The Statute of Westminster 1931 gave legal effect to the Balfour Declaration and other decisions made at the Imperial Conferences. Most importantly, it declared that the Parliament of the United Kingdom no longer had any legislative authority over the Dominions. Previously, the Dominions were legally colonies of the United Kingdom, and thus had no legal international status. The Statute made the Dominions de jure independent nations.

The Statute took effect immediately over Canada, South Africa and the Irish Free State. However, Australia, New Zealand and Newfoundland had to ratify the Statute through legislation before it would apply to them. Canada also requested certain exemptions from the Statute in regard to the Canadian Constitution.

Australian politicians initially resisted ratification of the Statute. John Latham, the Attorney-General and Minister for External Affairs under Prime Minister Joseph Lyons, was particularly opposed to ratifying the Statute, because he thought it would weaken military and political ties with the United Kingdom. Latham had attended both the 1926 Imperial Conference and the 1919 Paris Peace Conference, and he had much experience in international affairs. He preferred that the relationship between the United Kingdom and the Dominions not be codified in legislation.

However, other politicians supported the Statute, and the new independence it gave to Australia.

In 1930, shortly before the Statute was enacted, the Labor Prime Minister James Scullin recommended Sir Isaac Isaacs (then the Chief Justice of Australia) as the Governor-General of Australia, to replace Lord Stonehaven. This was a departure from previous practice whereby the British monarch, acting on the advice of the British prime minister, would offer the Australian prime minister a number of choices for the position. However, the Australian prime minister, acting in line with the principles of the Balfour Declaration permitting Dominion governments to look after their own affairs, insisted on the appointment of Isaacs. Although King George V disapproved of Isaacs, the 1930 Imperial Conference upheld the procedure under the declaration, and so the King appointed Isaacs. The other Dominions supported this demonstration of political independence.

Adoption

Four successive Prime Ministers – Scullin, Lyons, Robert Menzies and Arthur Fadden – did not adopt the Statute. John Curtin, who became prime minister eight weeks before the Imperial Japanese Navy's attack on Pearl Harbor, was finally prompted to adopt the Statute in 1942 after the Fall of Singapore and the sinking of HMS Prince of Wales and HMS Repulse. Prior conservative governments had asserted that British military forces would be able to protect Australia, but Curtin, along with External Affairs Minister Dr H. V. Evatt, thought that focusing on an alliance with the United States would be more valuable.

Before the 1940s, the United Kingdom had managed Australia's foreign relations as a matter of course. Curtin's decision to formally adopt the Statute of Westminster in late 1942 was a demonstration to the international community that Australia was an independent nation.

The immediate prompt for the adoption of the Statute of Westminster was the death sentence imposed on two homosexual Australian sailors for the murder of their crewmate committed on HMAS Australia in 1942. Since 7 November 1939, the Royal Australian Navy had operated subject to British imperial law, under which the two men were sentenced to death. It was argued that this would not have been their sentence if Australian law had applied, but the only way for the Australian government to get the sentences altered was by directly petitioning the King, who commuted them to life imprisonment. Adopting the Statute of Westminster, so that Australia became able to amend applicable imperial law, avoided a potential repetition of this situation. The men's sentences were later further reduced.^[1][2]

Provisions of the Act

The act had just three sections, one setting out the short title, one declaring that the Act was to come into operation as soon as it received Royal Assent, and one declaring that the Statute of Westminster had been adopted, and was considered to have had effect since 3 September 1939, the beginning of World War II.^[3] For a simple Act, it had a significant effect.

Section 2 of the Statute of Westminster abrogated the effect of the Colonial Laws Validity Act of 1865, and adopting it meant that laws made by the Parliament of Australia which were repugnant to British laws were no longer invalid. Section 4 of the Statute provided that laws made by the Parliament of the United Kingdom would only have effect on a Dominion at the request of the government of that Dominion.

Section 5 of the Statute removed British control over merchant shipping in Australian waters. Section 6 removed the British monarch's power to reserve certain legislation for his or her own consideration,^[4] rather than simply allowing the Governor-General to give the Royal Assent on the monarch's behalf.

References

• "Statute of Westminster Adoption Act 1942". National Archives of Australia: Documenting a Democracy. Retrieved 29 October 2017.
• "Independent Foreign Policy". John Curtin Prime Ministerial Library. Retrieved 4 August 2005.