The Treaty of Versailles, or "break in sovereignty" furphy
It became the fashion in the late 1990s to defend various court proceedings by arguing the "break in sovereignty" argument. A number of people who were being prosecuted under various laws argued that the laws under which they were being prosecuted were invalid. Someone who was being sued for civil damages argued that the courts were invalidly constituted. A company that was being wound up for not paying its taxes argued that the taxation laws were invalid. In each case the argument was that Australia had become independent - so it was claimed - at the end of World War One when we signed the Treaty of Versailles, and that meant - so it was claimed - that there had been a "break in sovereignty", which meant that we could no longer be bound, as an independent nation, by a Constitution that is a section of an Act of the United Kingdom Parliament.
For details of the sorts of laws that were alleged to be invalid see Joosse v Australian Securities and Investment Commission and Helljay Investments Pty Ltd v Deputy Commissioner of Taxation. For a semi-coherent formulation of the argument see paragraph 10 of Helljay.
Note that these claims were made by people who had taken general advantage of the benefits of the law all their lives until they suddenly "discovered" that a law which was inconvenient to them was invalid. If their claims were true, it is not at all clear what laws would be governing our daily lives. There is a reference in the pleadings in Helljay to the Commonwealth Parliament being the "superior court of the Nation", but it seems to be argued at the same time that it was not a valid legislative body. There is a reference to the sovereignty of the people of Australia, but apparently because of the "break in sovereignty" we have not been validly electing representatives to our Parliament so no valid laws have been made. There is a reference to "the internationally recognised borders of the new sovereign State of Australia", but apparently this State is unique among sovereign States in having no laws and no body capable of making them. What a pickle to find ourselves in!
Presumably the only remedy would have been for someone - but who, since there was apparently nobody exercising valid authority except the general mass of the people? - to call a quick constitutional convention, draft a new constitution, elect a new parliament, and re-enact a complete set of laws for a modern nation. But the people mounting these arguments don't seem to have suggested a method for getting the system back on the rails - their concern was simply to derail those parts of the law that were adversely affecting them.
The grains of truth
There are, as usual with furphies, some grains of truth in this giant furphy. It is true that the Constitution was enacted into law by the Parliament of the United Kingdom exercising its imperial power over the Australian colonies. Indeed the legal form of the Constitution is still that it is section 9 of the Commonwealth of Australia Constitution Act (Imperial). And it is true that we are now an independent nation, though our independence probably happened about 1941 or 1942 rather than in 1919. It is therefore true that we have a somewhat untidy situation, as a sovereign State that still has a law of the former colonial power as its fundamental document. Personally, I find this embarrassing. You would think that at some time since we became independent we - that is the Parliament and the people acting together - would have had the gumption to put our own enacting words - "This is the Constitution because we say so" or something a bit more formal - in front of the Constitution. But does our failure to do so make the Constitution invalid? No!
The much greater errors in reasoning
It probably has to be said, with respect to Hayne J, who was saddled with the task of deciding the applications in Joosse and Helljay, that his Honour did not do a very thorough job of refuting the theories put forward by the applicants, and to the extent that he did refute them his argument is circular. (He relied on one of the "covering clauses" to the Constitution - the very things that were alleged to have become inapplicable in 1919.) This is quite understandable - it is not normally part of the job of a Justice of the High Court to refute a challenge to the very existence of the system that has made him a Justice. It as if someone said "You are not a human, you are a rhinoceros. And the sky is orange." Do you write a 40-page "proof" that you are human and the sky is blue, which you know the challenger will not accept anyway, or do you just write him or her off as a loonie? However, in the case of Australia's independence there is a lot more that can be said.
The timing of independence
First, there is a minor error as to the timing of independence. We did not become independent just because an Australian representative signed the Treaty of Versailles in 1919. As Hudson and Sharp explain(1) , the treaty was signed by United Kingdom ministers on behalf of the whole empire, "with the signatures of dominion leaders somewhat redundantly added in parenthesis". We also did not become independent in 1931 when the UK Parliament enacted the Statute of Westminster 1931 - at the Australian government's request the drafters included section 10, which provided that the Statute was not to apply to Australia until it was adopted by the Commonwealth Parliament.
It was in the early years of World War Two that Australia started to assert its independence, and other countries appeared to accept that we had a right to do so. We appointed our own diplomatic representatives to Washington, Ottawa and Tokyo instead of relying on the British to represent us, we declared war in our own name on Japan instead of saying "Britain is at war, therefore we are at war", Curtin engaged in the "cablegram war" with Churchill over the return of the Seventh Division to Australia (and Churchill gave in, conceding that in the end Australia had the right to decide the disposition of its troops) and finally, on 9th October 1942, the Statute of Westminster Adoption Act 1942 commenced. So we did become independent - not in 1919 but somewhere in the period from February 1940 to October 1942. [The Adoption Act claimed to apply retrospectively since 3rd September 1939, but we hadn't been behaving independently back then.] But the Joose/Helljay applicants would presumably claim that the year, or range of years, is irrelevant, because they would say that independence still produced a "break in sovereignty" with all of the alarming effects suggested by them. But it did not - and even if it did there would be no break in the general application of the pre-"break" laws.
Even if there had been a break, the laws would not disappear
Let us first suppose that there had been some sort of a break in sovereignty - that Britain had not cooperated in our move towards independence and we had had to force the issue, say by passing an Independence from Britain Act (a "legal revolution"), or instructing the Seventh Division to take over the convoy by force and make the RN sailors bring the Division home at gunpoint (an armed revolution). Would that have made any difference? Would the Constitution and all the laws made under it evaporate into thin air, leaving Australia independent but having no valid laws binding anyone? Would everyone be free to go around, beating up anybody weaker than themselves and shouting "Nobody tells me what to do!"? Of course not!
Precedents from history tell us that when one nation conquers another or becomes independent from another, or just has an internal revolution, the tendency in all cases is for the existing laws to continue as they were before, to the extent that that is possible, until the new government gets around to changing them. That is, in all these circumstances there is a general presumption of continuance of laws. Let's consider each of those cases:
The law of conquest: Almost of necessity, it has long been the rule that when a nation conquers all or part of another one, the old laws stay in place until the conqueror has the time and the inclination to change them. This rule, first developed in continental Europe, was stated as part of English law by Blackstone in his Commentaries on the Laws of England:
But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.The settlement/conquest of Australia has been held not to fall under that principle - it was treated as a "desart and uncultivated" country, in Blackstone's words, so the English ignored the pre-existing legal system, or systems, of the indigenous people and brought their own laws - though indigenous ownership of the parts of the land that had not been effectively alienated by the government was belatedly recognised in Mabo v Queensland. But when the United Kingdom took colonies over from other European powers, who had already imposed a system of law that the English were able to recognise as law, they left the old law in place. So in Ceylon and the South African colonies much of the "Roman-Dutch" law was left in place and is still part of the legal systems of South Arica and Sri Lanka to this day. Old laws do not just evaporate, even after an armed takeover by another nation.
Little "new" law after internal revolutions: Where a revolution occurs in a state that is already self-governing, and the question is whether the new government should now be recognised by the judiciary or by other states, there is a theoretical test that seems, at first glance, appealing. Hans Kelsen famously suggested that one should recognise that a revolutionary regime has become established by observing whether the norms of the new order are, by and large, effective. However, in a series of cases involving revolutions in former British colonies it has turned out that this test has been generally useless - or, cynically, all too useful, as judges can use it to decide a challenge to a new regime's legitimacy any way they want to. The reason, as John Finnis has noted in a book chapter called, significantly, Revolutions and Continuity of Law(2), is that "in almost all cases the content of the post-revolutionary legal system is similar, if not identical, to that of the pre-revolutionary system". When a regime changes nobody assumes the old laws can vanish overnight - those plotting revolution tend not to have a team of legal drafters working away on a complete new statute book to be promulgated the hour after the Presidential Palace, the military barracks and the radio and TV stations have been seized. In most of the former colonies where these cases have arisen there have already been conveniently-oppressive internal security laws, orginally enacted by the British colonisers, left in place after independence - so the revolutionaries just leave the laws of the old regime in place and prosecute dissidents under those old laws, and trust that the courts will duly convict and sentence the counter-plotters. Old laws do not just evaporate, even after an armed coup within the nation.
Seizing independence by revolution: In perhaps the most dramatic case of all - the violent expulsion of a colonising power - you might expect the triumphant revolutionaries to reject the previous legal system and bring in a totally new one. However, when the Americans declared and fought for their independence they claimed that they were rebelling in the name of the best of the values embodied in English law, and largely kept the doctrines of the common law alive after the Revolution had succeeded. Blackstone's Commentaries on the Laws of England became an even more essential text for American lawyers than it was in England (see article). The most startling example of the preservation of English practices is the use of the writ of mandamus in Marbury v Madison, the leading case on the supremacy of the written Constitution. Mandamus was a "prerogative writ" - issued out of the English courts in the King's name as, historically, an exercise of the royal prerogative. After the Revolution, the Supreme Court saw no contradiction in continuing to issue it in the exercise of its supervisory jurisdiction - though they had rejected the King in whose name the writ had previously been issued, the writ was just part of the English legal system that they had inherited. As it has now been 230 years since the Revolution, the amount of English law cited in American cases is now much less than in the early years of independence, and the reception of English law has been codified by statutes in all States except Louisiana rather than being itself a matter of common law - but it all shows once again that old laws do not just evaporate, even after a revolution.
Of course there is one big difference between the American Revolution and the hypothesis being discussed here. In the United States they had to draft a federal Constitution after the Revolution, whereas if we had needed a revolution (legal or armed) to establish our independence, we already had a federal Constitution. If there had been anything in the Constitution seriously inconsistent with our new independent status of course it could not have continued, and there would have been a "break" in both sovereignty and the law, and we would have needed to draft a new Constitution as the Americans did. But there is very little that is inconsistent with Australia's independence in the Constitution(a few sections that fit oddly are discussed in note 3) - as explained below, it actually sets up the mechanisms for full sovereignty to develop. If we had had to seize our independence by revolution, there may then have been a "break" in sovereignty, but there would have been no break in the continuous applicability and effectiveness of the Constitution.
But there was no "break" in sovereignty
To emphasise the facts that the Constitution is a British enactment and that we were slow to express our independence on the international stage is, in any case, to look at only half the story. Though we may have been slow to express our "external" sovereignty, the "internal" sovereignty of the Australian people was built into the Constitution from the start. (See note 4 for an explanation of these terms). Certainly, according to the doctrine that everyone believed in 1900, the Constitution's original legal source was its enactment by the UK (or "Imperial") Parliament. But it has always had another source of legitimacy, at least in the political sense. As a result of Dr Quick's motion at the Corowa Convention in 1893, it had been
- drafted by representatives directly elected by the people of the colonies and
- endorsed by a direct vote of the people of each of the colonies before it was sent to the UK for its official enactment into law.
In 1901 it was still taken for granted that the people did not have the power to enact the Constitution into force, so it was presented to the UK Parliament for formal enactment. Its drafting and the approval of its text had been an exercise of the sovereignty of the people, but, according to the legal theory of the time, only in a political sense. However, the drafters had been looking to a more independent future. As Stephen J said in the Seas and Submerged Lands case, "That the Commonwealth was, by the Constitution, endowed with a capacity fitting it to take its place as a nation state cannot be doubted." The Commonwealth was given power over defence and external affairs, matters in which even a semi-autonomous colony or protectorate is usually subordinate to the colonising or protecting power. These were the powers that the Commonwealth would later use to establish our external sovereignty. Leave to appeal to her Majesty in Council (the "Privy Council") could be "limited" by law, so that eventually all legal disputes would be resolved in Australia by Australian judges. Paragraph (xxxviii) was included in sec 51 so that, as Sir Samuel Griffith explained, "there should be no necessity to refer to the British Parliament to do anything for Australia, either in changing a constitution or in anything else."
In the above quotation, Sir Samuel was referring specifically to changes in State Constitutional arrangements, but he may well have had the alteration of the Commonwealth Constitution in mind as well, because there is no need to refer proposed changes in it to the British Parliament either. Section 128 provides that the text can only be amended if both Houses of Parliament propose a change (or one House proposes it twice) and the majority of the people and a majority of the people in a majority of the States approve it at a referendum. The great British scholar of constitutions Lord Bryce asserted that, in a country governed by a Constitution which limits the power of the legislature or legislatures, the sovereign is the body which can amend the Constitution(5). Under that approach, the legal sovereign in Australia is a complex body consisting of a majority of the members of the House of Representatives(6), the majority of the electors in a majority of the States, and a majority of the electors overall. Since the members of the House are elected by the people, to say that the people are sovereign in Australia is a fair summary of the position, but it should be remembered when we want to be pedantic that it is a short-hand description of the complex body just described.
The first referendum was held on 8th November 1906, when the people approved a change in the turnover date for Senators. (See the AEC's Referendum Dates page for a full list of dates, proposals, and results). Even if the people's involvement in the drafting of the Constitution fails to count as an exercise of sovereignty, from that date on it is clear that the legal sovereignty of the people (pedantically explained, for anyone who insists on pedantry, as the complex body created by sec 128) had been exercised. It has been reinforced since then every time there has been a referendum. If the people (by double majority) vote "Yes" they have authored a new piece of the Constitution; if they vote "No" they have confirmed that they are content enough with the Constitution as approved by earlier manifestations of the people. For the first two decades of federation it may have been assumed that the UK Parliament could also amend the Constitution without Australian consent, and for a couple more decades it may have been assumed that they could do so at Australia's request, but that was never done. The power of Australians to amend their own Constitution was, in practice, exclusive from the beginning, and the theory that the UK Parliament could do it became more implausible with each passing decade.
Part of the argument advanced in Helljay (point "p." cited in para  of the decision) was:
That the sovereignty of the people of Australia is not, has not and cannot be expressed through any extant legal instrument, institution, parliament or judicial body since no plebiscite, referendum, enactment of the former Imperial power, or other instrument exists conveying the informed consent of the Australian people to such expression.Apart from the fact that this seems to be contradicted by other points in the pleadings, it is just flat wrong. The internal sovereignty of the people of Australia is expressed in the Constitution which was drafted by representatives of the people and approved by the people, even though it was enacted into law by the UK Parliament. It has constantly been confirmed by the holding of referendums ever since - 11 of them on 4 dates by the time of the alleged "break" in sovereignty in 1919, 7 of them on 4 dates between then and our true attainment of external sovereignty in 1940-42, 26 of them on 11 dates since then. The Parliament of the former Imperial power gave its informed consent to the transfer of external sovereignty by enacting the Statute of Westminster, and the Commonwealth Parliament, given its power by the Constitution over which the people are sovereign and elected at intervals by the people, gave its informed acceptance of that transfer by enacting the Statute of Westminster Adoption Act 1942. It is true that we did not follow that with a referendum to say "Hooray, we confirm our independence", but since the people had been exercising their internal sovereignty ever since 1906 it was hardly necessary (though it would be nice, even now, to tidy things up).
Rather than a "break", the transfer of sovereignty from Britain to Australia was more like a long slow dissolve, or cross-fade, in cinematic terms. As to external sovereignty, from a situation where we represented ourselves to the world as a British colony we changed step by step to an independent nation - by forming our own armed forces under local command, signing the Treaty of Versailles, participating in Colonial Conferences which morphed into Commonwealth Conferences, and then the events of 1940-42, discussed above. As to internal sovereignty, we moved much more rapidly from a situation where the UK Parliament could theoretically override the Constitution, to one where such a suggestion would have seemed ridiculous. The sovereignty of the people always has been expressed through an extant legal instrument - the Constitution - and through the institutions, parliaments and judicial bodies set up or (in the case of the States) confirmed by it. Some statutes, or sections of them, may be invalid for lack of power or for breach of a Constitutional prohibition, but the Constitution is still there and still valid and there is no general invalidity of everything.
1. Australian independence: colony to reluctant kingdom (MUP, 1998) [Back to text]
3. Section 74 provides for appeals to the Privy Council to continue, but also provides for the Parliament to limit them. Covering clause 8 provides for the Colonial Boundaries Act 1895 to apply to the overall boundaries of the Commonwealth, though not to the boundaries of the States, but our maritime boundaries are now defined by international law. Covering clause 5 provides for Commonwealth laws to apply on British merchant ships travelling between Australian ports, which is more of an interference with British sovereignty than with ours. [Back to text]
6. Why only the House of Representatives? Because under sec 128 an alteration Bill can be passed by both Houses, or twice by one House, and then the Governor-General may put the question to a referendum. But according to the conventions of responsible government, the Governor-General will act on the advice of the Prime Minister, so it is unlikely that an alteration passed twice by the Senate but rejected by the Representatives will be put to a vote of the people. Thus it is only really the House of Representatives that is a necessary part of the sovereign amending body. [Back to text]
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This page was last updated on the 28th August 2011.