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The Constitutionality of the Unilateral Secession of an Australian State

Published online by Cambridge University Press:  24 January 2025

Gregory Craven
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Extract

The possibility that an Australian State might one day seek to unilaterally secede from the Commonwealth has always held an ambiguous position in the political and constitutional folklore of Australia. On the one hand, such a notion conjures up visions of rampant political idiosyncrasy so ludicrous as to provoke little more than amused disbelief. On the other, even to pose the conceptual question of the disintegration of the painstakingly constructed and laboriously maintained Australian federal structure is to raise an issue almost too distasteful to contemplate. The status of secession as both a political and constitutional topic has thus essentially been that of a joke, but of a joke which, when fully considered, might be regarded as being in thoroughly bad taste.

Type
Research Article
Information
Federal Law Review , Volume 15 , Issue 2 , December 1984 , pp. 123 - 144
Copyright
Copyright © 1984 The Australian National University

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References

1 Section 5 of the Constitution Act provides that the Constitution Act shall be binding on the Courts, judges and people of every State, 'notwithstanding anything in the laws of any State'.

2 Section 2 of the Colonial Laws Validity Act has the effect of striking down State legislation which is “repugnant” to an Imperial Act of paramount force which applies to that State. The Constitution Act is, of course, such an Act. See eg Lumb, R, The Constitutions of the Australian States (4th ed 1976) at 91-92Google Scholar. It may be noted that it was agreed by the 1982 Premiers Conference that legislation would be requested of the Parliament of the United Kingdom which ended the subordination of the States to United Kingdom legislation applying by paramount force. Identical legislation would simultaneously be passed by the Commonwealth Parliament pursuant to s 5l(xxxviii) of the Constitution. (See Attorney-General's press release dated 25/6/1982; 22/6/1983; and 17/7/1983. Such legislation would doubtless involve the repeal of s 2 of the Colonial Laws Validity Act in its application to the Australian States. However, it may confidently be assumed that a provision analagous to s 8 of the Statute of Westminster 1931 would preserve the operation of s 2 as regards the Constitution Act. (The text of the proposed Australia Bill is not yet publicly available.)

3 Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth (1901) 293Google Scholar.

4 Lane, P, An Introduction to the Australian Constitution (2nd ed 1977) 223Google Scholar.

5 Enright, C, Constitutional Law (1972) 52Google Scholar.

6 Marshall, G, Parliamentary Sovereignty and the Commonwealth (1962) 114-115Google Scholar.

7 Sections 1-9 of the Constitution Act.

8 Moore, W, The Constitution of the Commonwealth of Australia (2nd ed 1910) 603Google Scholar.

9 Castles, A, “Limits on the Autonomy of the Australian States”, (1962) Pub L 175, 177Google Scholar.

10 United Kingdom, “Report of the Joint Select Committee to Inquire into the Receivability of the Petition of the State of Western Australia to Secede from the Commonwealth of Australia” Parliamentry Papers 1935 (H L) 75, para 6. Western Australia did not attempt to secede unilaterally, but rather sought to achieve secession by legislation of the Imperial Parliament.

11 For a detailed history of the drafting of the Preamble as regards secession see Craven, G, “An Indissoluble Federal Commonwealth? The Founding Fathers and the Secession of an Australian State” (1983) 14 Mel Uni LR 281Google Scholar.

12 Supra n 3, 294-4.

13 Ibid 292.

14 Ibid 293.

15 7 Wall 700, 725 (1869).

16 Supra n 3, 293.

17 Ibid. But see Garran, R, Prosper the Commonwealth (1958) 200Google Scholar, where Sir Robert Garran directly attributes the indissolubility of the Australian Federation to the preamble.

18 Supra n 5, at 52.

19 Vagner, W, The Federal States and their Judiciary (1976) 32Google Scholar.

20 Supra n 4.

21 Russell, E, “The Western Australian Secession Petition - Arguments before the Select Committee” (1935) 9 ALJ 141, 143Google Scholar.

22 United Kingdom, “Report of the Joint Select Committee to Inquire into the Receivability of the Petition of the State of Western Australia to Secede from the Commonwealth of Australia” Parliamentary Papers (1935) H L 75, 76 para 6.

23 (1884) 11 Cl & Fin 85, 143.

24 Cargo ex Argos (1873) LR 5 PC 134, 153; Dixon v Todd (1904) I CLR 320, 326; see also Edgar, S G (ed) Craies on Statute Law (7th ed 1971) 64-65Google Scholar.

25 Craies, ibid 41.

26 AG v HRH Prince Ernest Augustus of Hanover [1957] AC 436.

27 See Davies v Kennedy (1869) IR 3 Eq 668, 697.

28 See Mills v Wilkins (1704) 6 Mod 62.

29 Overseers of West Harn v Iles (1883) 8 App Cas 386, 388.

30 (1884) 11 Cl & Fin 85.

31 (1562) Plowd 353; 75 ER 536.

32 Ibid 369; 560.

33 Ibid.

34 Thus, the dictum expressed by Dyer, CJ in Stowel v Lord Zouch is perfectly consistent with the rule in the Susssex Peerage Claim, supra n 23.

35 (1884) 11 Cl & Fin 85.

36 (1897) 2 QB 242, 269.

37 See Overseers of West Ham v Iles supra n 28; Mason v Armitage (13) Yes 25; Lees v Summersgill (17) Yes 508.

38 Craies, supra n 25, 205. The preamble would therefore not even be consulted if the words of the section under consideration did not reveal an ambiguity. Thus, in the case of clear words, the preamble was ignored.

39 (1906) 3 CLR 444, 451.

40 (1904) 1 CLR 320.

41 (1904) 1 CLR 679, 686

42 (1884) 11 Cl & Fin 85.

43 [1957] AC 436.

44 The facts of that case were as follows: The provision concerned was cl 16 of the Princess Sophia Naturalization Act 1705 (Imp), which provided that the Electress Sophie 'and all persons lineally descended from her' were to be natural born subjects of the Kindom of England. Prince Ernest Augustus of Hanover, a descendent of the Electress, sought a declaration that he was a British subject by virtue of the statute. The Attorney-General, in opposing the making of the declaration, relied on the fact that the preamble referred to the naturalization only of the 'issue of the body' of the Electress.

45 [1957] AC 436, 463.

46 Ibid.

47 Ibid 465 per Lord Norman; 471 per Lord Morton: 472 per Lord Tucker; 473-474 per Lord Somervell.

48 (1884) JI c1 & fin 85.

49 [1957] AC 436.

50 See [1957] A C 436; 463 per Lord Simmonds; 468 per Lord Normand; 470-471 per Lord Somervell.

51 (1884) 11 CI & Fin 85.

52 (1897) 2 Q B 242.

53 Supra n 37; and see Dwarris, F, A General Treatise on Statutes (2nd ed 1948) 503-504Google Scholar.

54 Longman, P (ed) Maxwell on the Interpretation of Statutes (12th ed 1969) 7Google Scholar.

55 Supra n 25, 203-206.

56 Halsbury's Laws of England (4th ed) xxvi, 494. The rule is that it [the preamble] may not be used to control of qualify enactments which are themselves precise and unambiguous, but if doubt exists as to the meaning of a particular enactment, recourse may be had to the preamble to ascertain the reasons for the statute, and hence the intentions of Parliament'.

57 [1964] 2 QB 580, 587.

56 (1884) 11 Cl & Fin 85.

59 (1981) 148 CLR I, 15-16; contra 23 per Mason J; see also Pearce, D, Statutory Interpretation in Australia (1974), 51-52Google Scholar.

60 (1906) 3 CLR 444.

61 This conclusion is not affected by s 15AA of the Acts Interpretation Act 1901 (Cth), which requires the courts to prefer a purposive to a literal construction. In the first place, s 15AA would appear to be confined in operation to Acts of the Commonwealth Parliament. In the second, nothing in s 15AA, particularly in light of ss (2), authorizes any departure from the usual practice relating to preambles.

62 Supra n 23.

63 (1906) 3 CLR 444.

64 Supra n 5.

65 Basically, ss (3) and (4); below 19-22.

66 For a brief outline of the contending influences operating upon the High Court, see Howard, C, Australian Federal Constitutional Law (2nd ed 1972) 6-9Google Scholar.

67 A slightly more liberal approach to the general question of statutory interpretation may be discerned in Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.

68 Sir Owen Dixon went so far as to state in his inaugural speech as Chief Justice that he would be sorry to think that anyone might say that the interpretation of the Constitution was anything but legalistic; (1952) 85 CLR X.

69 See State of Tasmania v The Commonwealth and the State of Victoria (1904) I CLR 329, 338 per Griffith CJ.

70 (1907) 4 CLR 1304, 1321.

71 (1925) 28 CLR 128.

72 In the Engineers case, (at 150), the High Court endorsed the decision of the Privy Council in Webb v Outrim [1907] AC 81, which held that the Constitution Act ought to be interpreted along 'the ordinary lines of statutory interpretation'.

73 (1908) 6 CLR 569, 611-612.

74 (1910) 8 CLR 465, 535.

75 Cf Marshall, G, Parliamentary Sovereignty and the Commonwealth (1957) 114Google Scholar; see also Garran, R, Prosper the Commonwealth (1958), 200Google Scholar.

76 As previously stated, the United States Supreme Court was prepared to hold in Texas v White 7 Wall 700 (1869), that the preamble to the United States Constitution prohibited secession with its reference to 'a more perfect Union'. Such a decision would be of little assistance in the Australian context. The American preamble is quite different from the preamble to the Constitution Act, as were the circumstances of American Federation from those which applied in Australia. Furthermore, the reasoning in this post-Civil War case is as much attributable to the fact of the Northern Victory as to any rules of statutory interpretation or Constitutional law.

77 See eg The Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208, 213-214 per Griffith CJ; A-G (Vic) Ex Rel Black v The Commonwealth (1981) 146 CLR 559, 577- 578 per Barwick CJ.

78 Ibid; see also Re Pearson; Ex parte Sipka (1983) 45 ALR 1, 6 per Gibbs CJ, Mason and Wilson JJ.

79 Supra n 11.

80 Ibid 296-297.

81 Ibid.

82 Federated Saw Mills Employees v James Moore and Sons Pty Ltd (1910) 8 CLR 465, 635.

83 Glynn, P, “Secession” (1906) 3 Commonwealth Law Review 193, 204Google Scholar.

84 Commonwealth of Australia Gazette 1901, 1.

85 J Quick and R Garran, supra n 3, 331; Ex parte Chavasse, Re Grazebrook 34 LJ Bk 17.

86 Cf W Moore, supra n 9, 603; Quick, J, The Legislative Powers of the Commonwealth and the States of Australia (1919) 125Google Scholar; Enright, supra n 4, 287; United Kingdom, “Report of the Joint Select Committee to Inquire into the Receivability of the Petition of the State of Western Australia to Secede from the Commonwealth of Australia,” Parliamentary Papers (1935) HL 75, 76 para 6.

87 Cf J Quick, supra n 55 at 215; J Quick and R Garran, supra n 3, 343; W Moore, supra n 8, 603; but see C Howard, supra n 66, 3.

88 This would seem to be the view of W Moore, supra n 8, 603, and A Castles, supra n 9, 177. The comments of the Western Australian Secession Committee would also seem to be explicable solely upon this basis; see Parliamentary Papers (1935) HL 75, 76 para 6.

89 Cf Lumb, R, “'The Commonwealth of Australia' - Constitutional Implications” (1979) 10 F L Rev 287, 294Google Scholar.

90 See G Craven, supra n 11, 298-299.

91 As one of the covering clauses, s 3 can only be amended or repealed by the Parliament of the United Kingdom; see J Quick and R Garran, supra n 3, 989; C Howard, supra n 6, 2-3; but see Thomson, J, “Altering the Constitution: Some Aspects of Section 128” (1983) 13 F L Rev 323, 333-334Google Scholar.

92 Nor, therefore, would there be any need to refer to the Convention Debates regarding the question of secession on this point.

93 Eg Powell v Kempton Park Racecourse Co [1897) 2 QB 242, 269.

94 Alternatively, it might be argued that the preamble was merely a pious aspiration to which no real meaning could be ascribed; cf Federated Saw Mills Employees v James Moore and Sons Pty Ltd, (1910) 8 CLR 465, per Isaacs J.

95 [1957] AC 436.

96 Such an embarrassing conclusion would be supported by a comparison of the well drafted s 3 with the somewhat haphazard preamble. Whereas s 3 carefully makes reference to the possible entry of Western Australia the preamble simply fails to refer to that State at all. Accordingly, s 3 is far more resonant of careful thought by the framers of the Constitution Act than the preamble.

97 If, on the other hand, s 3 was held to be unambiguous, the preamble could not be used to create an ambiguity; supra n 85.

98 [1957] AC 436.

99 (1827) 3 Russ 436.

100 Lumb, R, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 F L Rev 148, 159Google Scholar.

101 Supra n 5, 287; cf C Howard, supra n 6, 3.

102 Commonwealth of Australia, Report of the Royal Commission on the Constitution of the Commonwealth (1929) 230.

103 Above n 9, 76, para 6.

104 Supra n 6.

105 Supra n 5.

106 Section 5 l(vi).

107 Section 51(xii).

108 Section 51(xxix).

109 Lumb, R, “The Commonwealth of Australia - Constitutional Implications” (1979) 10 FL Rev 287, 294Google Scholar; see also Constitutional Acts 6: “The Commonwealth” shall mean the Commonwealth of Australia as established under this Act.

110 Ibid.

111 Section 51 gives the Commonwealth Parliament power to legislate for the Commonwealth. Section 6 defines the Commonwealth as being the Commonwealth of Australia 'as established under this Act'. Section 4 clearly establishes that Commonwealth as being physically composed of the territories of the Colonies set out in s 3.

112 Wynes, , Legislative, Executive and Judicial Powers in Australia (5th ed 1976) 542Google Scholar.

113 R Lumb, supra n 2, 80.

114 Eg Constitution Act (NSW) s 5; Constitution Act (WA) s 2.

115 Eg Constitution Act (Vic) s 16

116 R Lumb, supra n 2, 80; R v Burah (1878) 3 App Cas 889; Powell v Apollo Candle Co (1884) 10 App Cas 282.

117 (1947) 74 CLR 508, 530-531.

118 See James v Commonwealth [1936] AC 578.

119 Cf In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508, 530-531 per Dixon J.

120 See Worthing v Rowell & Muston Pty Ltd (1969) 123 CLR 89, 125 per Windeyer J; Victoria v The Commonwealth (1971) 22 CLR 353, 370-371 per Barwick C J.