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Common(wealth) Knowledge #47: The Statute of Westminster

The history of how Australia achieved true independence from the U.K.

The Statute of Westminster is one of the most-requested topics for a Common(wealth) Knowledge article. With the launch of our GovCheck team and our focus on international influences on Australian law and government, it’s finally time to take a look at the Statute of Westminster, arguably one of the most important steps in Australian independence from the United Kingdom, second only to Federation.

Contrary to popular belief, Australia did not become completely independent on January 1st, 1901. While it did mark Australia’s transition from six separate colonies into one nation, Australia only became a Dominion of the Commonwealth.

Since the 1840s, the Australian colonies had been granted increasing degrees of self-government, with the development of separate legislatures, courts, and eventually elected executive governments led by Premiers. This was a process known as ‘responsible government,’ as colonial governments were becoming responsible for running their own affairs.

Although the Australian Constitution and Federation gave Australia almost complete control over its domestic affairs, it didn’t give the Australian Commonwealth government control over its own foreign affairs, despite Section 51(xxix) of the Constitution allowing the Commonwealth government power over external affairs.

Australian foreign affairs were conducted through the British government and its Colonial Office. Australia did not possess its own separate embassies and ambassadors in other countries. Instead, Australia used the British embassies.

By the Colonial Conference of 1907, Australia and Canada were unique as the only two British territories with such high levels of domestic self-governance. But it was agreed at the Conference that they would now take on ‘Dominion’ status and would be joined by a handful of other British territories, and Imperial Conferences would be called about every four years to give the Dominions a say in British foreign policy.

At the end of World War I, Australia and the other Dominions signed the 1919 Treaty of Versailles separately from the British government. This meant that they also joined the League of Nations separately too. This was the first sign of international recognition as separate political entities to the UK. But this was only the first part of the process.

While at Versailles, Prime Minister Billy Hughes took advantage of Australia’s ambiguous status to argue that the League of Nations should give Australia, separate from the UK, some of Germany’s former colonies to run on behalf of the League as ‘mandates.’ He also emphasised Australian independence by blocking a Japanese proposal to include a racial equality clause in the League of Nations Charter. However, he often followed the UK’s lead in voting during treaty negotiations, as did the other Dominions present, effectively giving the British additional votes to cast. This pattern would later continue in the League of Nations.

However, after World War I the Dominions split into two camps. Canada and the Irish Free State pushed for more independence. Australia, New Zealand, and Newfoundland, however, were satisfied with their position. The Anglo-Saxon majority in Australia was loyal to the UK, although the significant Irish minority tended to side with the radicals of the Irish Free State.

At the Imperial Conference of 1926, the Dominions and Arthur Balfour, former UK Prime Minister and now the Lord President of the Privy Council, which advised the King on matters of state, agreed to the Balfour Declaration of 1926. The Balfour Declaration was the first sign that the UK was willing to surrender its control over the foreign affairs of the Dominions. The Balfour Declaration declared the following:

“There is, however, one most important element in it which, from a strictly constitutional view, has now, as regards all vital matters, reached its full development - we refer to the group of self-governing communities composed of Great Britain and the Dominions. Their position and mutual relation may readily be defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.”

Of course, things weren’t that simple. Just as the Australian Prime Minister is first among equals when it comes to Ministers of the executive government, even though the Constitution doesn’t mention the Prime Minister, so too was the UK the first among equals in the British Commonwealth of Nations.

After further discussion at the Imperial Conference of 1930, the British Parliament passed the Statute of Westminster 1931 (UK). Whereas the Balfour Declaration established a constitutional convention, this legislation was the UK formally surrendering its control over foreign affairs. This would be binding in relation to each Dominion once that Dominion passed the same law. Check out Common(wealth) Knowledge #16 for more on how constitutional conventions operate.

The Irish Free State and Canada quickly adopted this law themselves. They were the only Dominions to do so by the time King Edward VIII abdicated the throne in 1936 to marry Wallis Simpson. This abdication required the British Parliament to pass specific legislation. However, the Statute of Westminster not only meant that the British no longer had any control over external affairs, it also said that for any British law to apply to a Dominion, the Dominion’s Parliament must also request that a law would apply to them, and then consent to it.

The Canadian government complied with this requirement. However, the Irish Free State took the opportunity to remove any reference to write a new constitution that wouldn’t refer to the British Crown, and change the name of the Dominion to Ireland. Australia, New Zealand, and the Union of South Africa, who hadn’t adopted the Statute of Westminster, merely passed legislation assenting to the abdication legislation. By this time, Newfoundland had surrendered its Dominion status due to domestic problems.

Going into World War II, Australia remained close with the UK. In fact, some British politicians had suggested replacing British PM Winston Churchill with Australia’s Robert Menzies. But this relationship quickly changed.

Following Japan’s entry into the war in December 1941, Australia was faced with a war on two fronts. Australian troops had been committed to the North African campaign, but now they were needed in the Pacific. This led new Labor PM John Curtin to clash with Churchill, a situation made even worse when Singapore, Britain’s main naval base and fortress in the Pacific and East Asia, fell to the Japanese in February 1942.

John Curtin announced that Australia would move away from the UK, and become closer with the United States, fighting alongside them in the Pacific. In fact, the only US ship to be named after a foreign capital city was the USS Canberra, named after an Australian ship that was sunk while fighting alongside the US.

The tipping point was the murder of John Riley, a stoker on the HMAS Australia, by two other stokers, Albert Gordon and Edward Elias, allegedly because Riley sought to expose the homosexual relations of the other two men, with whom he had previously been involved. When Australia joined World War II on 3 September 1939, the Royal Australian Navy fell under UK jurisdiction, which commenced on 7 November 1939. The two men thus faced a court martial under UK law. Unlike in Australia, the UK allowed soldiers to be executed for murder.

H V Evatt, the Attorney-General and former High Court judge, sent a cable to the UK on 31 July 1942, informing the British government that this would not have happened if the Statute of Westminster was law in Australia, as the Royal Australian Navy would fall under Australian jurisdiction instead.

On 1 October 1942, Labor introduced the legislation to Parliament, sponsored by Evatt. It passed later that year as the Statute of Westminster Adoption Act 1942 (Cth). The law operated retrospectively from 3 September 1939, meaning that it was backdated to that date, and was taken to have been in effect since then. This prevented Gordon and Elias from being executed, although their conviction was upheld.

As a final note, the control over external affairs given to the Dominions by the Statute of Westminster codified an agreement from the Imperial Conference of 1923, which allowed Dominions and the UK to enter into treaties of their own. Australia’s turn towards the US led to the creation of the 1951 ANZUS treaty between Australia, New Zealand, and the US. New Zealand had finally adopted the Statute of Westminster in 1947. The UK protested because they were not involved, although the US likely would not have signed the treaty if the UK joined. But the UK was powerless to stop Australia.

Although the Australian Constitution remains the most important document in the history of Australia’s independence from the UK, the Statute of Westminster is the second most important. Australia asserting its control over both its domestic and external affairs meant that Australia had become truly independent from the UK. Just 6 years after the Statute of Westminster Adoption Act 1942 (Cth) passed, Evatt would become the President of the United Nations General Assembly, showing to the whole world that Australia was an independent nation.

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