Statute of Westminster and Australian Sovereignty

This assignment analyzes the Statute of Westminster's influence on Australian lawmaking and sovereignty. It discusses how the statute shifted power from the British Parliament to Australian legislatures, ultimately leading to Australia's full legal autonomy through the Australian Act 1986. The paper also examines the historical context of colonial lawmaking in Australia, highlighting the limitations imposed by previous acts like the Colonial Laws Validity Act 1865.

Running head: LEGAL SOCIETY
Legal Society
Name of the student
Name of the university
Author note

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LEGAL SOCIETY
Part 1
Before the phase of settlement Europeans merely acted as explorers. When James Cook
in 1770 covered the east coast line of Australia he claimed that the exploration was made in
relation to a British territory. It was clear that no consultation had been done with the indigenous
people along with entrance if no treaty. The act of James cook had been justified years latter
through the doctrine of terra nullius (the land to nobody).
In 1785 Orders-in-Council were issued by London which initiated the establishment of a
colony in Botany Bay.
Arthur Philip who had been appointed the governor-designate of the newly formed
colony in 1786 created a detailed memorandum establishing that the laws of UK would be
applicable in Australia and no slavery was allowed.
In the year 1827 the first test of the doctrine was initiated in the court of NSW in the case
of R v Tommy,[1827] NSWSupC 70 Supreme Court of NSW (24 November 1827) according
to the case only when the issue was related to natives and the settlers were the natives imposed
on by British laws.
The New South Wales Act 1823 (UK) had been passed to proclaim Tasmania as a spate
colony for that of NSW.
The Colonial Laws Validity Act 1865 was passed to establish a relationship between
colonial and imperial legislations.
According to the legislation the colonial act was fully effective in the respective colony
however is should not have any contradictory law to the imperial legislations. The legislation

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provided authority to colonial law making however in addition established that they are
subordinate to the British parliament.
The first formal step towards making the colonies federal was through the Federal
Council of Australasia in the year 1885. However it was a weal and non legislative step. Two
constitutional conventions had been initiated and adopted a constitution derived from American,
British and other models. The constitution was provided approval by the six colonial voters.
The constitution was then passed alongside some amendments which included provisions
of appeals to the London Privy Council in form of a British parliament Act and came to be
known as the Commonwealth of Australia Constitution Act 1990.
The legislation was initiated on 1st January 1901 and marked the beginning of the
commonwealth of Australia. However it was latter imposed by the British government that any
Australian law would be eligible to be replaced by British monarchs within a year but this power
was never exercised.
In the mid 1920s the British governments established full legislative autonomy of the
dominions.
The legislative effect was given to this rule in the year 1931 through the Statue of
Westminster 1931.
The effect by the statue was taken in the year 1942 when the Statue of Westminster
Adoption Act 1942 passed.
The application of the legislation repealed the Colonial Laws Validity Act 1865.

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The legislation was in force till it was repealed by the Australian Act 1986. The
legislation terminated effectively the power of the British government or parliament to enact
laws for Australia. The legislation ensured that any law which previously required British assent
could be passed by the Australian parliament.
Part 2
The legal system of Australia had been developed in accordance to the legal system of
Britain which was included in the system as a part of making Australia a British colony. A
limited right had been granted by the British Parliament to the colonies to set up a local court
system. Thus every colony had been provided to power to make laws in order to deal with
specific situations. Thus separate development of laws and legal system was initiated in each
colony.
The concept of judicial independence which is presently established initiated in the year
1701. One of the central pillars of the Australian legal system is judicial independence.
The Charter of justice was passed on 2nd April 1787 (UK) with respect to an Australian
system of law.
The colony of NSW had been established in 1788 after the NSW courts Act 1787 had
been passed to keep the convicts under control.
The colonel Collins commission (NSW) was passed on 14th January 1803 through which
a convict system had been established by David Collins at Hobart.
On 2nd April 1814 the Second Charter of Justice of New South Wales established the
NSW supreme court of Civil Judicature.

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In the year 1823 the charter of Justice (UK) was passed on 13th October through which
the Ad Hoc legal system of Australia had been subjected to regular procedures.
In the year 1828 the Australian Courts Act 1828 (UK) was passed bringing the trial by
jury to a stay.
In the year 1903 the Judiciary Act 1903 (Cth) was passed through which a high court
was gained by Australia but it lost the prime minister.
In the year 1933 ACT Supreme Court Act 1933 (Cth) was passed through which a
supreme court had been created.
The appeals to the privy council by the high court were abolished through the efforts of
the Privy Council (Appeals from the High Court) Act 1975 and Privy Council (Limitation of
Appeals) Act 1968.
In the year 1980 Coastal Waters (State Powers) Act 1980 (Cth) was passed which
initiated a new High court building in Canberra by Queen Elizabeth II.
The Australian Act 1986 (Cth) undid the old constitutional ties and initiated a strong step
towards the independence of judiciary from the British rule. Under the chapter III of the
constitution judicial breach of the government had been set out. The high court of Australia
which was the federal Supreme Court was established through section 71 of the constitution.
The court had been provided the power to govern its own activities in 1980 through the
High Court of Australia Act 1979.
The district court of NSW had commenced from 1st July 1973 through the passing of the
District Court Act 1973 (NSW).

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Part 3
The British during the period of 1700-1900 made many colonies and within them
introduced their own legal system. Various laws were passed by the British parliament in order
to ensure that British supremacy continues to be established over the colonies. The purpose of
this paper is to discuses two of such legislations namely the The Colonial Laws Validity Act
1865 (28 & 29 Vict. c. 63) and the Statute of Westminster 1931 (Imp) 22 & 23 Geo 5 c 4. The
paper discuses the importance and effects of the two legislations with respect to Australia.
The Colonial Laws Validity was an act of British parliament. According to the title of the
act it had been passed to abolish any doubts in relation to the colonial laws validity. The act
purported to eradicate any visible inconsistency between colonial and British legislations. The
act provided that the Colonial legislations which were passed in accordance to the provided
procedures would have due effect in relation to the colony they have been passed in, however the
provisions of such legislation should not be inconsistent to the provisions of any existing
legislation of the British parliament. Any such provisions in colonial legislations were deemed to
be invalid1. The effect of the legislation was such that the colonial legislatures had been
provided with increased law a making powers however he supremacy of the British parliament
was imposed upon them. Till the legislation was enacted a few local statues had been declared
invalid by the judges on the grounds that they were not in consistent with an existing British
legislation irrespective of the fact that such imperial legislations had the intention to be
implemented in the colonies. The particular problem was causing serious issues in South
Australia where on various occasions local laws were declared invalid by Justice Benjamin
1 The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63)

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Boothby in the Supreme Court. It was accepted by the British till the year 1920 that full
legislative authority has to be provided to the dominions and accordingly the statue of Statute of
Westminster was passed repealing the provisions of the Colonial Laws Validity Act in Australia
along with other counties like Canada, New Zealand, South Africa and NewFoundLand. The
legislation was the first effort made by the British parliament to provide some apparent rights to
the colonies towards law making. The rights are said to be apparent as the law made by the
colonies would have been anyways in accordance to the law of the British parliament. Thus the
colonies were provided an apprehension that they have been provided with increased right
whereas in reality the British parliament ensured supremacy without providing extra effort
towards law making for the colonies.
The Statue of Westminster has been modified in various ways so as to incorporate it
within the legal system of Australia and other colonial countries2. The legislation has been
repealed by New Zealand expressly and impliedly in those dominions which are no longer under
the British. The act had immediate and in certain cases upon ratification effects through which
the dominions governed by the British gained legal independence from being bound to consult
the British parliament before making laws. Thus a statutory embodiment had been established
based on equity which was set out in Balfour Declaration of 1926. It was the most significant
step towards the making of Dominions in independent separate states3.
The basis of the relationship which is continuing between the crown and the
commonwealth realms is set out by the statue and this is its relevance in the present day. Certain
political resolutions which had been passed by the Imperial Conferences of 1930 and 1926
2 Norton, P. (2015). Back from Westminster. University Press of Kentucky.
3 Cunneen, Chris. "Colonial processes, indigenous peoples, and criminal justice systems." (2014).

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particularly the Balfour Declaration of 1926 were given effect by the statue. The major effect of
the statue was to abolish the power of the British parliament to make laws for the colonies which
was provided by the Colonial Laws Validity Act 18654. It was expressed by King Gorge that the
laws of succession should be exempted from the statue, however as such desires would have
been against the principles of the Balfour declaration so it was rejected. Section 4 of the statue
provided that no act passed by the British parliament after the commencement of this act would
extend to or apprehended to be extended as a part of law for any dominion unless the dominion
had consented to such laws5.
Section 2-6 off the statue was adopted by Australia through the Statute of Westminster
Adoption Act 1942 so that validity of specific legislation of Australia can be clarified. The
adoption was done during the initiation of the world war. The adaption of section 2 by the
commonwealth of Australia ensured that the Australian parliament could enact legislations
which did not have to be consistent with British legislations. In addition the acceptance of
section 3 of the statue ensured that the parliament could make legislations which had an
extraterritorial effect. Section 4 ensured that only if Australia consented to such act could Britain
legislate in relation to Australia6. The capacity of legislating in relation to those areas which were
not within the scope of the constitution was still vested in the British parliament through section
9 but such capacity was never used7. However, the powers of the British parliament with respect
to legislating for Australia came to an end by the acceptance of the Australian Act 1986.
4 Prokhovnik, Raia. "From sovereignty in Australia to Australian sovereignty." Political Studies 63.2 (2015): 412-
430.
5 Statute of Westminster 1931 (Imp) 22 & 23 Geo 5 c 4
6 Day, David A., and David Day. Claiming a Continent. HarperCollins Australia, 2015.
7 Lloyd, Clem, and Jacqui Rees. The last shilling: a history of repatriation in Australia. Melbourne Univ.
Publishing, 2017.

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Concluding the paper it can be provided that the The Colonial Laws Validity Act
1865 (28 & 29 Vict. c. 63) although only provided apparent powers to the colonies towards law
making, it ensured that law making is initiated by the colonies themselves making them self
sufficient in relation to laws. The colonies were not satisfied with the statue as it created a lot of
issues where most of the legislations were declared inconsistent with the British laws even the
British parliament did not intend to do so. The step towards gaining supreme law making power
by Australia was initiated by the Westminster statue which abolished British indulgence in
Australian law making. However not until the Australian Act was passed did Australia get
official soverginity over law making.

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Bibliography
Cunneen, Chris. "Colonial processes, indigenous peoples, and criminal justice systems." (2014).
Day, David A., and David Day. Claiming a Continent. HarperCollins Australia, 2015.
Lloyd, Clem, and Jacqui Rees. The last shilling: a history of repatriation in Australia.
Melbourne Univ. Publishing, 2017.
Norton, P. (2015). Back from Westminster. University Press of Kentucky.
Prokhovnik, Raia. "From sovereignty in Australia to Australian sovereignty." Political
Studies 63.2 (2015): 412-430.
Statute of Westminster 1931 (Imp) 22 & 23 Geo 5 c 4
The Australian Act 1986
The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63)