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TWO NATIONS, TWO DESTINIES: A REFLECTION ON THE SIGNIFICANCE OF THE WESTERNAUSTRALLAN SECESSION MOVEMENT TO AUSTRALIA, CANADAAND THE BRITISH EMPIRE

CHRISTOPHER W BESANT*

Society is indeed a contract. Subordinate contracts for objects of mere occa- sional interest may be dissolved at pleasure - but the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, callico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born. Each contract of each particular state is but a clause in the great primaeval contract of eternal society .... The municipal corporations of that universal kingdom are not morally at liberty at their pleasure, and on their speculations of a contingent improvement, wholly to separate and tear asunder the bands of their suboldinate community ....I

Burke in Reflections on the Revolution in France

* BA (McMast) ARCT LLB (Toronto) LLM (Cantab). Visiting Lecturer in Law, University of Western Australia. 1. E Burke Reflections on the Revolution in France (1790) (Harmondsworth, Eng- land: Penguin Books, 1986) 194-195. 2 10 WESTERN AUSTRALIAN LAW REVlEW

Everything has been staked on this single position ... the acts of Parliament must be obeyed. But this general unconditional, unlimited oppression I am far from thinking applicable to every possible case which may arise from the turn of the times. For my part, I conceive that power resulting from trust, arbitrarily exercised, may be lawfully resisted whether the power is lodged in a collective body or in a single person ... whenever the trust is used to the injury of the people, whenever oppression begins, all is unlawfkl and unjust, and resistance becomes of course lawful and right ...2 Lord Carnden speaking on the right of the American colonies to secede in face of the imposition of stamp duties by the Parliament in Great Britain.

... Elhat we insist only upon being treated as freemen, and as the descendants of those British ancestors, whose memory we will not dishonour by our degeneracy, it is reasonable to hope, that they will approve of our conduct, and bestow their loudest applauses on our congenial ardour for liberty ... that the principles on which we have founded our opposition to the late acts of Parliament are the principles of justice and freedom, and of the British constitution ... Can the Americans, who are descended from British ancestors, and inherit all their rights, be blamed - can they be blamed by their brethren in Britain - for claiming still to enjoy those right^?^

James Wilson, 1768 (American colonial activist).

2. Lord Camden's speech was quoted by Wentworth during the agitation over Im- perial taxation in New South Wales in 1850. The incident is discussed in J hngo The Doctrine of Parliamentary Sovereignty and the Australian Constitution: A Reconsideration of the Orthodox View (unpublished B Juris (Hons) thesis (UWA) 1980) 77. As with the West Australian secessionists, rebel New South Welshmen petitioned for redress of their grievances but were prepared to follow the example of the American colonists if need be. The quote from Camden as used by Wentworth is set out in Longo, 91 n 20. 3. R G McCroskey ied) The Works of James Wilson vol I1 (Cambridge, Mass: Bellknap Press of Harvard Uni Press, 1967) 722, 731. The Commonwealth is not only for today, or for tomorrow, hut for ever. It is indissoluble. We are going to bind ourselves to join and never separate again unless, of course, we are separated by an Ad of the Imperial Parliament. That would he the only thing. An Ad of the Imperial Parliament could sever us as it unites

Sir John Forrest introducing the Federal Constitution Bill in the Western Australian T~gislativeAs- sembly on 23 May 1900.

I know it is in the minds of those in the Eastern States, as much as in your minds, that this Constitution declares itself to be indissoluble; that it would remain in a sense for ever. But I would remind you that nothing in the world would prevent Western Australia from seceding through the united voice of her pe~ple.~

Sir Winthrop Hackett speaking at the Perth Town Hall in favour of Federation on 14 July 1900.

4. Quoted in Hon A Lovekin MIX "Can We Secede From the Commonwealth?" A paper read before the Dominion League of Western Australia ("DLWA") 23 May 1930, Battye Lihrary, Perth, Western Australia PR 10563136,lO-11. 5. Ibid, 11. Unlike Forrest, Hackett was committed to the federation ideal. Never- theless, he had substantial misgivings about the timing of the federation proposal. He felt that WA should delay entry until it was strong enough to stand on an equal footing with the other States: see Lyall Hunt (ed) Westralian Portraits (Perth: UWA Press, 1979) 95. 212 WESTERN AUSTRALIAN LAW RENEW NOL. 20

PART I INTRODUCTION On 17 December 1934, a crisp London breeze unfurled the flag of the Dominion League of Western Australia, which had been hoisted atop Savoy House, the offices of the State's Agent-General in London. The League, spearhead of the Western Australian secession movement, intended the flag to become the national symbol of the self-governing Dominion of Western Australia upon the favourable reception of the State's Petition to secede from the Commonwealth of Australia. It was a moment of triumph. The secession movement had captured the official headquarters of the State in London; even the Agent-General himself was a secessionist. Their long held dream seemed about to become a waking reality. A deeper line would be drawn through the sea of sand: one continent, two nations, two destinies. The Petition had been delivered on 1 November 1934 by the youthful and impulsive H Keith Watson, Chairman of the Dominion League, to the Dominions Secretary, the Right Honourable J H Tho- mas, PC, one of the architects of the Statute of Westminster 1931, for presentation to His Majesty the Kinge6The occasion for the flying of the flag on 17 December was the formal presentation of the secession Petition in the two Houses of the British Parliament through the secessionists' spokesmen, (in the Commons) Captain Adrian Moreing MP and (in the Lords) the Marquess of Aberdeen and Temair.7The

6. A picture of this moment appears in H K Watson 'Whither Australia? Whither Western Australia?" (Perth: DLWA, 8 November 1935) 2, Battye Library Ar- chives 1801 A Box 2. 7. The First Interim Report of the Delegation on Behalf of the People of Western Australia ("First Interim Report") (Perth: GPS c 9361, 1936) 5, describes the arrival of the delegation and the presentment of the Petition in more detail. The First Interim Report issued on 16 January 1935 and can be found in the Battye Library at PR 10563114. The Report notes that a few days after the arrival of the delegation in London (on 26 October, 1934): ... [A1 sound film was taken by Paramount Films depicting the arrival of the Delegation with the Petitions. The Petitions were displayed and there was also recorded a brief explanation by Sir Hal Colebatch. The "shoot" was included in the News Reel and prominently displayed at the cinemas throughout Britain irnme- diately afterwards. It would be well worth the Battye Library's effort to enquire as to whether this film clip is still extant, and if so, whether it, or at least a copy, could be repatriated. 19901 TWO NATIONS, TWO DESTINIES 213 formal document on that day presented was a 26 foot roll of sheepskin, hand-written and encased in a casket ofjarrahRSimultaneously with the presentation of the Petition, copies were circulated to all members of the House of Commons and to the Peers of The Case of the People of Western Australia in Support of Their Desire to Withdraw from the Commonwealth of Australia Established Under the Commonwealth of Australia Constitution Act (Imperial), and that Western Australia be restored to its former status as a separate self-governing colony in the British Em~ire.~The Case For Secession was a 489 page document

8. E D Watt "Secession in Western Australia" (1958) 111 (2) Unzuersily Stud~esin Western Australian History 43,73. A copy of the Petition is on microfilm at the Battye Library but,apparently, the original has ended up in the hands of an American Library according to notations on the microfilm. For the cost of the Petition and the caskets, see The William Sotnerville Papers, Battye Library Archives 465A (Clippings file: 24 September 1935). Somerville assembled an extensive file of newspaper and other clippings on succession from which many of the citations in this article were taken. The clippings are usually dated and the paper is sometimes but not always referenced. The source is usually The West Australian, as is apparent from the typeset. However, many citations of newspaper articles herein do not include page references unless Somemille noted them. On occasion the date of a Perth Newspaper to which information or a quote is attributed rests on my interpretation of Somerville's notes, which may be wrong. To reconstruct his file from original sources would be a worthy task, but one beyond the scope of the present exercise. Any difficultiesin locating an article as cited can be resolved by inspecting Somerville's files or the other Perth newspapers the Daily News or Sunday Times on the same day or one or two days either side of the date as cited. 9. The Case was published by the Government Printer (Perth: GPS, 1934) and will be referred to as the Case For Secession. It was prepared under statutory authority - (WA) Secession Ad 1932 and under the authority of a joint resolution of the two legislative houses. The Case For Secession was submitted to and approved by the State Legislature pursuant to the (WA) Secession Ad (No 2) (1934). See the Case For Secession iii-iv and infra n 142. An unofficial version was published as a special edition of the West Australian on 27 March 1934 (See Watt supra n 8,601 and an abridged version was produced for circulation to Members of the Imperial Parliament pending delivery of the full length version of the case to London. The abridged version emphasised the benefits to Britain of a free Westralia - the opening of markets to British manufacturers and the opening of immigration doors to the 'excess' of white Britons: See H Keith Watson's Papers (Secession Delegation memorandum 1 December 1934): Battye Library Archives 1801 A Box 2. In fact, Sir Hal Colebatch CMG a member of the secession delegation, emphasised in a London address on 5 November 1934 that Germany and Japan were not the only nations seeking 'lebensraum' and that Great Britain had no need to "carry war into neighbouring territoriesn nor to "risk assimilation with peoples of different races". Western Australia had vast 'empty' areas that could absorb Britain's 'surplus' white population. See Colebatch Address, 5 November 1934, Watson's Papers ibid Box 2, 8. It is thus not surprising that the Australian Native 214 WESTERN AUSTRALIAN LAW RENIEW [VOL. 20 replete with economic arguments and maps detailing the grounds on which it would be appropriate for the King in Imperial Parliament to grant the secession request of the West Australian People. The State and People of Western Australia were represented in this process by a delegation appointed pursuant to the Western Australian Secession Act 1934. The delegation consisted of the Agent General in London, Sir Hal Colebatch, CMG a secessionist of long standing; M L Moss, KC; the State's legal advisor in London, James McCallum Smith, MLA, the owner of the Sunday Times, which was a key voice in the secession movement; and Keith Watson, Chairman of the Do- minion League as noted above. From their ofices in the Strand,Inthe delegation began from early November (and would continue throughout the first half of 1935) to conduct vigorous lobbying efforts with politicians,journalists, and business leaders in support of the Petition.l1 That the Petition was presented in a casket would seem appropriate in retrospect, as it was considered by many in England and Australia to be a dead letter from the moment of its presentment. This interpretation stemmed from the outcome of a secession referendum which had been conducted pursuant to the Western Australian Secession Referendum Act 1932. The results of this referendum were solidly in favour of action being taken by the State to seek to secede from the Common- wealth. However the referendum was conducted in tandem with the State election, the result of which was to oust the government of James Mitchell which had staunchly supported the campaign leading to the

Association of WA opposed secession staunchly: Somerville Papers supra n 8 (Clippings file: 5 September 1935). For further comment on the racial policies of the secessionists see infra n 17 and accompanying text. 10. The delegation office was in the offices of the WA Agency-General in London, a facility made available through Colebatch, who was both Agent-General and a member of the Secession Delegation. In other words, from November 1934 to July 1935, the official face of Western Australia in London was controlled by the secessionists. See Secession Delegation First Interim Report supra n 7. 11. See Watt supra n 8, 5 for summaries of the lobbying efforts. The Colebatch speech supra n 9 was typical of their efforts. The Law Journal, 29 December 1934, observed that "Everything that the secessionists can do to put forward their case in legal form and with legal dignity has been well done." The Saturday Review 3 January 1935, noted that "Much interest has been aroused in West Australia's case ... by the vigour of the State's delegation ... Considering how remote the question was from the mind of the average Englishman, the attention given to it by the Press of London and the provinces has been remarkable". See Secession Delegation First Interim Report supra n 7,4 which contains these and other quotes. 19901 TWO NATIONS, TWO DESTINIES 215 secession referendum of 1933, in favour of the Labor government of Phillip Collier, who was already on record as opposing secession. Thus the ambiguity of the pronouncement of the electors, which had taken place on 8 April 1933, cast doubt on the seriousness of the exerci~e.~

1.1 Historical significance of the secession movement It is perhaps this discounting of the nationalist sentiment in Western Australia that existed through the first thirty years of Federation that accounts for the apparent erasure of this event from the Australian consciousness. Nowhere is this more apparent than in modern constitutional texts and casebooks which generally contain no references to the question of secession, let alone any discussion of this particular event which threatened the whole fabric of the Common- wealth itself. And it is not only Australia as a whole, but Western Australia in particular, which has decided to forget the period. The report of the Joint Seled Committee of the two Houses of Parliament which was struck to consider the question of the receivability of the Petition in 1935, and which ultimately refused to receive the Petition, is buried away on microfiche in the Reid Library and in the archives of

12. Watt supra n 8,49-53,82-83.Watt suggests that the vote might be seen as an anti- government protest in the midst of a recession. To vote secession was to vote against the Commonwealth government; to vote State Labor was to vote against the National Party government of Sir James Mitchell. This does not mean secessionist sentiment was not serious; secession is simply an extreme form of an anti-government sentiment and, thus, the electors may well have intended the secession path to be pursued vigorously. The new premier, Collier, certainly interpreted his mandate in that light. On the other hand, the papers of the federalist, William Somenille, contain a complaint from an elector that secession campaigners told her that a vote for secession was a mere protest and that secession was a rhetorical strategy to raise tariff grievances, not a political end - see the Somerville Papers supra n 8 (Clippings file - Letter to Editor 16 September 1934). The London papers were divided on the seriousness of the exercise (contrast the views reported by Watt supra n 8, 12 with those reported by the Secession Delegation supra n 11) but, by early 1935, the Chief Secretary of WA. J M Drew, was warning easterners that secession was more than a protest movement. Somerville Papers supra n 8 (Clippings file: "Mr Drew Enlightens Sydney" 8 February 1935).And even after the defeat of the Petition, Professor Beasley, Dean of the University of Western Australia Law School warned that "the smouldering embers of secession ... may at any time burst into flame again" unless the Commonwealth took action to revise the inegalitarian structure of Australian federalism. See F R Beasley "The Secession Movement in Western Australia" [I9361 The Australian Quarterly 31, 36. 2 16 WESTERN AUSTRALllW LAW FUWEM the State Library and is not even represented in the the collection of the Law Library of the University of Western Australia. This collective forgetting is perhaps the most extraordinary legacy of the secession movement. For the movement was one of sigrdicance. It was not merely the culmination of the long standing nationalist sentiment of an elite. It became by the early 1930's a mass movement which generated a nationalist culture of poetry, political rhetoric, and even produced a national anthem. And it was not only in Western Australia that such movements developed.'Vasmania and South Australia supported the West Australian movement and threatened similar actions of their own. l4 What has been forgotten is that Australia was once beset by pro- found regional antagonisms, which threatened to rip the Constitution and the continent in half. This is seemingly a memory too painful in a world where the vision of Sir Henry Parkes has come to predominate.

13. This is discussed infra. For samples of the literature, see the Dominion Leakrue Papers in the Battye Library PR 10563, Watson's Papers supra n 9, and a special section of the Sir Hal Colebatch Papers devoted to secession: Battye Library Archives 240A. The Dominion League produced a set of anthems which were marketed commercially, as well as poetry, in addition to the numerous pamphlets and political tracts it generated. It appears that the anthems may have been used at Dominion League meetings - see Watt supra n 8,48 citing the West Australian 28 March, 1, 4, 7 April, 1933. 14. In Tasmania, in 1934, the first plank of the Labor Party was "Justice for Tasmania, Failing Which Seoession". On 23 March 1935, the Tasmanian Premier declared his support for the WA petition and indicated that any conference to revise the Constitution had to be chaired bv the British not the Commonwealth in order to ensure impartiality. See Somerville's Papers, supra n 8 (Clippings fdes: "Suggested British Enquiry - Mr Ogilvie's Proposal" West Australian 23 March 1935). Somerville's files also disclose that WA Premier Collier rejected this suggestion on the basis that "the British Government would not dream of interfering", indicating a dim view of the Petition process. On the other hand, Collier also emphasised that 7f the present Federal State Relationship continues, I can see no future for Western Australia, South Australia, and Tasmania". He suggested that this would either lead to disintegration of the Commonwealth or State bankruptcy and thus unification: Somerville Papers supra n 8 (Clippings file: "State Disabilities - Mr Collier's Forebodings" West Australian 23 March 1935). The tendency to see federation as an untenable middle ground was also a secessionist theme. See also Watt supra n 8, 60-75 discussing the Commonwealth reaction to secession which, in early 1935, approached a state of panic. See ibid, 60 noting that at the Premier's conference of February 1934, Premier Butler of South Australia indicated that his State was nearly insolvent and that he would ask the people to vote for secession rather than face default (see also the reports cited by Watt in the West Australian 20-22 February 1934). 19901 TWO NATIONS, TWO DESTINIES 217

Thus today, local sentiment is channelled not into regional complaints as it is in Canada, but into the abstract dodrine of states' rights, which sees New South Wales and Western Australia equally as victims of a power hungry central government. This abstract rhetoric obscures the reality of Federation - that it tends to operate to the long-term benefit of older and more populous states. The decision to forget Western nationalism has robbed the West of a potent symbol - a symbol which would otherwise serve to galvanize the population into scrutinizing not just the federal balance, but the regional balance of the Constitution. No small state will ever claim its full measure of influence in a federation without such vigilance. One could certainly argue, by comparing the institutional infraskdure of Perth to that of Melbourne or Sydney, that the fundamental concerns raised by the Dominion League in the 1930's remain to be addressed. More fimdamentally, the movement has to be seen in the context of the growing problem of nationalism within the British Empire itself between 1919-1935. At the very time that the Western Australian secession Petition was presented to Parliament, the Irish under Eamon De Valera were straining against their 'treaty' with Great Britain, the Scottish were agitating for Home Rule, the Indians were demanding self-government, and the South Africans independence. The very Stat- ute of Westminster which recognised the reality of nationalist spirit in Canada and Australia was but three years old. Such nationalism has a darker side, as Europe was soon to discover. This was always true of antipodean nationalism. Parkes' federal vision had ultimately been based on "the crimson thread of kinshipn amongst Australian peoples; the Westralian nationalists similarly had a racist vision. One of the benefits held out to Britain by the secessionists was that a Dominion of Western Australia would offer a haven for the "surplus" white population of Great Britain, who could people the "empty north. The Commonwealth was condemned for permitting racial intermixture in the North; Federation was blamed for allowing the North West to fall back into Aboriginal hands. A vigorous White Australia Policy was promised to the electorate in the referendum campaign.'"t was thus not surprising that local Aborigines felt threat-

15. Seen 17 and n 100 and text accompanying the latter. The Parkes quote is cited by Lovekin supra n 4,s-6. 2 18 WESTERN AUSTRALIAN UWRGVIEW WOL. 20 ened16 by a movement that thought in terms such as these: If Australia was a dominion of Germany, of Italy or of Japan, would it not be regarded as affording just the room for expansion that their people need?" The secession movement was also emblematic of the crisis provoked throughout the Western democracies by the Great Depression, which produced a bursting of constitutional bonds throughout not only the Empire, but the United States and other Western nations as well. Secession, one form of constitutional change, was a response to this crisis in the three smaller Australian states. Likewise in North America, there were responses to the Depression which demanded the reorgani- sation of constitutional structures. The New Deal of Roosevelt was rejected by the United States Supreme Court in Schecter Poultry as unconstitutional, just as the Canadian New Deal was rejected by the Privy Council in the Labor Conventions and other cases decided in 1937. In both cases, constitutional amendment was required, although hsevelt's was achieved informally by threatening to pack the United States Supreme Co~rt.~ In all three situations, the tension is between socialist inspired centralism and libertarian or nationalist inspired claims to local autonomy. The secessionists saw the options in such black and white terms: secession or unification; London or Moscow. These themes were raised again in Western Australia in the 1970's when the opposition leader, Charles Court flirted with a revived secession movement in reaction to

16. The West Australian 29 May 1935, extracted in Somerville Papers supra n 8 (Clippings file). 17. Colebatch address supra n 9,8. See also a similar address by Colebatch on 13 February 1933 "Effects of Federation" (Perth: DLWA, 1933) Battye Library PR.10563128 14. See also Hartrey "Secession: Pros and Cons" (Perth: DLWA, 1 March 1933):Battye Library PR.10563118, 15-16; and see the Case For Seces- sion supra n 9, c 25. 18. Schecter Poultry Corp u US 295 US 495 (1935). For the Labor Conventions case, see infra n 138. TWO NATIONS. TWO DESTINIES the radical socialist - centralist Whitlam government in Canberra.'' Ultimately, those tensions produced a different form of constitutional rupture. Thus the conventional view of the present generation, that the secession movement in Western Australia was merely the misguided, isolated, and whimsical response to transient economic issues, fundamentally misstates the context in which the event occurred. National- ism was rampant throughout the first part of the twentieth century and in particular from the start of the 1930's onwards. The transient trading issues with which Western Australians were concerned, particularly tariffs, were the centrepiece of economic debate throughout the world, not only in Australia. This combination of depression and nationalism

19. See hvekin supra n 4,18-19 alleging that the Commonwealth sought unification. And see ibid, 11, where he noted: Nthough in some of the Eastern States there is a trend towards exchanging London for Moscow, no such objective is counte- nanced here. We are loyal to our mother country ... and will ever be so. The LondoniMoscow comparison was invoked to illustrate both the physical and political distance between West and East in Australia. The position of Sir Charles Court is evident from a letter to Professor C G Bolton dated 13 August 1973: Battye Library Archives 22ROA, where it was noted: I cannot see any of the major parties initiating a secession movement. However, I can see a situation where a 'grass roots' type of organisation would generate in a spontaneous way - particularly if there is a continuation ... of the current policies of the Commonwealth Government in Canberra to centralise power and dictate to the States ... I hope the people in Canberra get this message and appreciate that the only way secession talk and action will be avoided will be if there is a proper respect for the federal system ... [If] there are separate States with clearly defined and important responsibilities, there can be no danger of Australia being rushed headlong into a political system and ideology which I believe to be quite foreign to the ambitions of most Australians. This letter sounds remarkably like the letter written by Premier Mitchell to the WA secessionists in 1930 declaring his support in principle for their aims: see Letter of 27 June 1930 referred to in DLWA "Proceedings of the State Conven- tion Held 4 Auyst 1931" Battye Library PR.1056319 at p 10 and see DLWA: "A Fight for Freedom from the Fetters of Federationn (1933) Battye Library PR.105631 19 setting out a lengthy extract from the letter. 220 WESTEFtN AUSTRALIAN LAW REVIEW [VOIA. 20

profoundly transformed the British Empire during this period, and carried the potential to transform the Australian polity as well. It is not imigmfkant that by November 1935, the Dominion League of Western Australia was advocating unilateral separation without Imperial ap- pr~val.~Their time however had passed. Had they adopted such a strategy earlier on, the results for Australia might well have been very different. As will be discussed below, the leaders of the movement had misapprehended the effect of the Balfour Declaration of 1926, which was by no means clear at the outset of the 19307s,a misjudgement which profoundly influenced the growth of their movement, and perhaps prevented the realization of their dreams.

1.2 The legal significance of secessionism and its relevance to Canada The secession movement should be of interest not only to histori- ans, but to constitutional lawyers as well. When Western Australia's Petition for secession was presented to the British Houses of Parlia- ment, a preliminary question arose as to whether the Petition could properly be re~eived.~] A Joint Select Committee of the two Houses of Parliament was struck, composed of members learned in the law and experienced in Imperial affaimZ2The constitution of this committee reflected the unique character of its task: it was to express a legal opinion on a convention of the Imperial Constitution. The convention in issue was

20. See H K Watson supra n 6. As discussed in the text below, annexed to this pamphlet was a draft bill to give effect to a West Australian unilateral declaration of independence. 21. Secession Delegation First Interim Report supra n 7,6. 22. Somerville Papers supra n 8 (Clippings File: The West Australian 26 February 1935) quoting Lord Hailsham, the Secretary of State for War, who proposed in the Lords the notion of a Joint Select Committee. On the composition of the Commit- tee, Hailsham noted: [It is] entirely a question of constitutional law. Accordingly, we have done our best to find persons skilled in the Constitution ... [Three] are people familiar with Constitutional Law ... [The others] have rendered eminent service in the Empire. Apparently, there was no difficulty in finding members to sit on the Committee, as the "unusual problem attracted many lawyer members of Parliamentn: Somer- ville Papers (Clipping File "Secession Petition - Choosing the Joint Commiltee" The West Australian 15 February 1935). 19901 TWO NATIONS, TWO DESTINIES 221 none other than the Balfour Declaration 1926 which was given statutory form in the United Kingdom Statute of Westminster 1931.23The judgment of that joint select committee was the first judicial interpretation of the process by which full sovereignty had evolved in the British dominions. In the course of the judgment, the committee articulated the new grundnorm or fimdamental principle of the Austra- lian Constitution. It explained the meaning of Australian sovereignty in face of the waning "sole despotic dominion" of the Imperial Parliament over its c~lonies.~ That the case was of such fundamental si&icance is evidenced by its role in the Canadian patriation process. The Canadian Patriation Reference of 198lZ5is one of the few other judicial decisions in the British Commonwealth addressed solely to the interpretation of a constitutional convention. In that case, the Supreme Court of Canada was asked to adjudicate on the constitutional legitimacy of the attempt by the Federal government of Canada to unilaterally patriate the Canadian Constitution, by way of legislation of the United Kingdom Parliament, to be passed pursuant to the "request and consentnmecha- nism of the Statute of Westminster 1931. One of the questions put to the Court was to determine whether there was a Canadian constitutional convention precluding such unilateral action without provincial consent, and if so, whether the convention had been violated.

23. 22 and 23 Geo V c 4. The Balfour Declaration is discussed further below and cited infra n 73. 24. The grundnorm is a Kelsenian notion. For a general overview of Kelsen's thought, see J G Starke "Fundamental Views and Ideas of Hans Kelsen (1881- 1973)" (1974) 48 AW 388. See also Longo supra n 2 for a discussion of parliamentary sovereignty as the English grundnorm. Longo's thesis is in fad an argument that popular sovereignty is the Australian grundnorm, a position advanced by the Joint Select Committee itself, as will be discussed below. 25. Reference re Amendment of the Constitution of Canada (Nos. 1, 2 and 31 125 DLR (3d) 1. The case is in two parts. One set ofjudgments is addressed to purely legal questions. A second set ofjudgments is addressed solely to conventional questions. For a review of the case which discusses Commonwealth practice as regards the justiciability of conventions, see T R S Allan "Law, Convention, Prerogative: Reflections Prompted by the Canadian Constitutional Case" (1986) 45 Cambridge W 305. On the role of the Statute of Westminster 1931 in redefining the grundnorm of the Dominions, see P J Hanks "Re-Defining the Sovereign: Current Attitudes to Section 4 of the Statute of Westminster" (1968) 42 AU 286. 222 WESTERN AUSWLAW FdWllW

The Federal Government of Canada was (in part) forced to seek a precise answer to this question, despite its avowed desire to proceed without the necessity of obtaining any provincial consent, because of earlier advice given to the United Kingdom House of Commons For- eign Affairs Committee set up to consider the possibility of entertaining the Canadian request for such constitutional amendments. A memorandum by the Foreign and Commonwealth Affairs OEce submitted to that committee in 1980 (and adopted in their report) cited the Joint Select Committee decision on the Western Australian secession Petition as a precedent for the proposition that it would not be an interference in Dominion affairs for the Parliament of the United Kingdom to consider the extent of provincial opposition in addressing the question of whether it was appropriate to grant the Canadian Government's request for a constitutional amendment.%This articulation of the right of the component jurisdictions of a Dominion to oppose a request for constitutional amendments by the central government forced the Federal Government of Canada to seek precise advice hmthe Courts as to the requirements of the Canadian convention (if any) in this matter. Specifically, the Federal Government had to determine what degree of provincial opposition it could by convention legitimately ignore in seeking a constitutional amendment. The Foreign Mairs Committee report on this matter, in accepting the Foreign and Commonwealth Ofice advice, confirmed that a new Canadian constitutional grundnorm had emerged. The Patridion Ref- erence was the attempt by the Supreme Court of Canada to define that grundnorm. The result was a judicial articulation of the long elusive amending formula for the Canadian Constitution which paved the way for the 1982 constitutional changes in Canada.

26. See U K Parliament The British North American Acts: The Role of the Parliament, First Report of the Foreign Affairs Committee H C Paper 42 (1980-1981),xii, and paras 7,8,85,86,88,93,95,96,103and 104. The advice from the Foreign and Commonwealth office dated 11 November 1980 appears at H C Paper 42 (1980- 1981) vol2,61f. This report is discussed in Allen supra n 25,310 n 18 and more extensively in J M Finnis 'The Responsibilities of the United Kingdom Parlia- ment and Government under the Australian Constitution" (1983) 9 Adel L Rev 91. Finnis explores the impact of the West Australian Petition on the Canadian Patriation Process in some detail. See also UK Parliament Third Report on the British North America Acts: The Role of the Parliament H C Paper 128 (1981- 1982) where the Foreign Affairs Committee comments on the significance of the Canadian Supreme Court's judgment in the Patriation Reference. TWO NATIONS, TWO DESTINIES

This development in turn laid the groundwork for the current revival of separatist sentiment in Quebec. The province of Quebec disagreed with the definition of the new grundnorm that emerged from this process (and in particular with the negation of its right to veto constitutional change), and with the constitutional amendments which resulted therefrom. Accordingly it has rehsed to recognise the legitimacy of these amendments and has forced the country, with the Meech Lake process, to attempt a redefinition of that grundnorm. It appears that if that process fails, and failure is a substantial risk, Quebec will claim the right to secede." The Western Australian experience offers some legal guidance in that regard as well.

1.3 Secession and the cycles of history To appreciate the simicance of the Western Australian movement, it must be examined in the larger context of the problem of secession within the British Empire. The history of Britain and its colonies is a history of secession, starting with the American secession in 1776 (which was invoked as a touchstone by the Western Australian secessionists) to the later secession from that union by the Confederacy, (which was invoked by the Australian Unionists as a scare tactic), to the Irish secession (to which the Western Australian nationalists had turned their gaze by the early 1930'~).~Each of these claims was an assertion of the right to self-determination made against a larger community claiming the right to exercise sovereignty. So too was Western Australia's claim. So too will be the claim of Quebec.

27. Since the writing of this paper, the Meech L,ake process has in fact failed, and Quebec has indeed claimed the right to secede. As to the history and background to the Meech Lake process see R A MacDonald "Meech Lake to the Contrary Notwithstanding", Seminar Paper Murdoch University Law School Perth (WA) 7 June 1990 (Unpublished at present, although as at the time of writing, it is understood tht the draft will be submitted to a Canadian academic law journal for publication shortly). 28. There are many other examples. The Statute of Westminster 1931 effectively marked the secession of the Second Empire, a fact soon recognised by the South Africans: see Ndlwana u Hofmeyr 11937)A D 229; see also the remarks of Lord Denning in Blackburn u Attorney General [I9711 2 All ER 1380, 1382-1383. Similarly, Victoria was created by a petition to secede made by the southern inhabitants of New South Wales in 1850, a request granted by the Crown over the objections of the colonial government, as the Western Australian secessionists were eager to point out: see Hartrey supra n 17, 11. 224 WESTERNAUSTRALIANLAWREVIEW [VOL. 20

Reflecting on the Western Australian movement provides an opportunity to consider the wider problem of secession, which has suddenly taken on a sense of ur~ncyinternationally. This generation is witness- ing an intensification of nationalism not only in Quebec, but across eastern Europe. The peculiar combination of rising nationalism and declining economic welfare in which the Quebec movement is set presents an intriguing parallel to the earlier West Australian movement. Likewise the careless decision of the Canadian House of Com- mons on 13March 1990 to endorse Lithuania's right to independence offers an interesting contrast to the much more guarded approach to the Irish claims taken by Prime Minister Lyons at the height of the Western Australian secession mo~ement.~Lyons saw too well the relevance of the precedent to his own problems. The issue has relevance not only for Canada but also for Australia. The secession movement has already had one revival in Western A~stralia.~~It is nevertheless generally believed that the impulse to secession is dead. That echoes the ironic words of former Canadian Prime Minister Pierre Trudeau of several years ago about the death of separatism in Quebec. This attitude neglects the fad that many of the grounds of the secessionist complaint in the 1930's remain true of Western Australia in the 1990's. The recent prohibition of the impor- tation of secondhand Japanese cars in order to protect the Eastern manufacturing industry is an example of the continuing economic subjugation of Australia's West. The state remains separated by a sea of sand from the cultural heartland of the country and from its main institutions of power. Those are conditions which can easily be produc- tive of nationalism in times of economic hardship. That secession must remain a constant concern for all federations was perhaps best ex-

29. Canada External Affairs Press Scan 13 March 1990: Unclassified CBCICTV National News Highlights. On Lyons' approach to the Irish Question: see the Diplomatic Note from the Commonwealth of Australia published in The London Times 5 April 1932 and extracted in Dawson infra n 74,446-447. 30. Letter from Sir Charles Court to Professor G C Bolton supra n 19. See also the post mortem on the secession movement by Professor Beasley in 1936: supra n 12. TWO NATIONS, TWO DESTINIES pressed in the Commonwealth Law &view as early as 1906 (the same year as one of the earliest resolutions of the West Australia Legislature in favour of secession): ...[Als eternity is not a condition of time, whose function, as Shakespeare says, is to make the survey of the world, it must, if there be any potency in words, outlast the globe itself. Time, which 'antiquates antiquities and hath an art to make dust of all things,' will nevertheless keep on with its mutations. The principles of growth, conservation, and decay will doubtless continue to make history until the crack of doom. The declaration, therefore, that the Australian Commonwealth is indissoluble, may be regarded as one of the preliminary flourishes addressed to the conscience, which are to be found in the preambles of instruments that suggest more than they accomplish."' Federations have always been the "deliberate calculation of intelli- gent men who perceived that by such union alone could they obtain the object of their de~ire".~%utany state or federation may be recalcu- lated; there can always arise a sub-group of the people: devoted to liberty, sprung from a nation in whose veins the blood of freedom circulates; of an ardent and jealous affection, and liable to become suspicious, restive and untradable whenever likely to be deprived, by force or chicane, of what they thought, the only advantage worth living for? Australia itself owes its existence to the gradual emergence of this sentiment. If the history of the British Empire has been nothing less than a history of secession, it would be unwise to assume that the history of the Canadian or Australian empires will be any different.%

31. P McM Glynn "Secession" [I9061 Commonwealth Law Review 193, 204. See also R Garran The Coming Commonwealth: (Sydney: Angus and Robertson, 1897) where Garran argues that every federation is in theory perpetual and every secession a revolt, but notes that there has been no instance of a perpetual federation, and suggests that if secession were really just and necessary, it "would probably meet with little resistance" from the central government. 32. Lecky, as cited in Glynn supra n 31,194. Glynn provides no reference. 33. Burke on the American revolutionists cited in Glynn, ibid. 34. Garran supra n 31,34-37 noted that federations tend to be a phase, however long, between separation and unification. That was indeed how the Western secessionists perceived things: the choices for the West were stark: secession or unification: see Lovekin supra n 4, 16 accusing the Lyons government of seeking unification. See also DLWA election campaign material (they campaigned in the federal election of 1934) such as "Long Live Western Australia!! Federation Doomed - Unification or Secession" Perth: DLWA March 1934: Battye Library PR 10563126, which argues that Commonwealth moves to adopt the Statute of Westminster will lead to unification. 226 WESTERN AUSTRALTAN LAW RIiVIEW WOL. 20

PART 11 WESTERN SECESSION AND ITS IMPLICATIONS: A DETAILED ANALYSIS This second part of the article will explore more deeply the significance to Australia, Canada and the British Empire of this extraordinary period in Western Australian history. To do so, the following issues will be examined: 1. The history of the secession movement 2. The Petition process 3. The judgment of the Joint Select Committee on the Western Australian Petition and its significance in the articulation of the new Australian grundnorm 4. The aftermath of the Joint Select Committee decision 5. The significance of the decision to the Canadian patriation process 6. The legality of secession in the Quebec and Australian con- texts.

2.1 A history of the secession movemenP5

The federation process

Western Australia had not even attained self-government when Sir Henry Parkes wrote to the Colonial Secretaries Ofice on 30 October 1889 to make his influential recommendation that a national convention be convened "for the purpose of devising and reporting upon an adequate scheme of Federal Government for the Australian colonies".~ In fad an Act was passed by the Western Australian legislature in 1889 proclaiming responsible government, but it was subject to the enactment of enabling legislation by the Imperial Parliament, which was not put in place until July 1890. Responsible government was not proclaimed in the colony until 21 October of that year and the first responsible ministry was not appointed until December. The first

35. For good summaries of the rise of the secession movement, see Watt supra, 8; G Craven Secessiox The Ultimate Slates Right (Melbourne: Melbourne University Press, 1986) c 2 and 3, and G Greenwood infra n 53, c 5. 36. Quoted in New South Wales United Auslralia: Public Opinion in England (Sydney: Charles Potter, Government Printer, 1890) vii-viii. 19901 TWO NATIONS, TWO DESTINIES 227

Premier, John Forrest, took up as one of his first tasks the representation of the State at the first Federation convention where the issue of course was the surrender to a central authority of a portion of this new found power.37Having already agitated to acquire self-government, and having met some resistance from the Colonial Office, it is not surprising that the initial ministry was reluctant to so quickly relinquish its newly won sovereignty. Forrest and his colleagues were opposed to federation throughout the Convention Debates, and thus unlike the eastern colonies, Western Australia did not participate in the referenda of 1898 and 1899 held upon the question of adopting the draft Federal Con~titution.~Rather, the new government was anxious to get on with the development, exploitation, and population (by whites) of its vast 'barren' areasJ9 The Western Australian who knows the -ircumstances of his third of Australia ... is well aware that Western Australia's entry into Federation was a historical accident, her leaders having been pushed and cajoled into it by two forces of external origin. So testified the Western Australian historian, Professor Shann, before the Royal Commission on the Constitution in 1927.40This controversial quote was given pride of place in the Western Australian Case For Secession presented in justification of the secession Petition, and was the subject of a critical reply by the Commonwealth in its document of response: The Case For Union.*l The two forces of external origin brought to bear upon Sir John Forrest were the "Separation for Federation" movement on the goldfields and the tactics of tne Secretary of State for the Colonies, Joseph Chamberlain. The gold rush of the mid 1890's had attracted a huge influx of eastern fortune hunters to Kalgoorlie. This influx of settlers swelled the population of the State with persons who had no sense of

37. Case For Secession supra n 9, xv has a chronology of the attainment of self- government. 38. Ibid, 21. 39. Ibid, 20. See the discussion of the connection between the White Australia Policy and Secession discussed above. 40. hid, 21 contains the quote. Professor Shann himself was not necessarily a secessionist; in the papers of Somenrille, one of the drafts of The Case For Union (Canberra: AGPS 2833, 13 Dec 1934) contain exchanges with Shann at the time the case was being written: see Battye Library Archives 465A. 41. Commonwealth of Australia The Case For Union supra n 40,29-30. 228 WESTERN AUSTRALIAN LAW REVIEW WOL. 20

the distinctive identity of the coastal sarldgropers, " an identity born of their extraordinary isolation from the other Australian colonies by the "sea of sand" (a metaphor constantly evoked by the secessionists). Indeed by the 1930's, Sydney was still a week away from Perth by rail. The settlers in the goldfields were in reality an eastern colony with eastern sentiments and when it became apparent that the coastal dominated government was not sympathetic to federation, Kalgoorlie rapidly gave birth to its own secessionist movement. The Separation for Federation movement, orchestrated by the Eastern Goldfields Reform League, petitioned the Queen, requesting that the eastern half of the State be separated from the western coastal half and integrated into the Federation should Forrest refuse to permit the entire State to accede to the vision of Sir Henry Parke~.~~ Chamberlain, the Colonial Secretary, lent his support to this movement rather overtly. The pressure exercised is apparent from his tele- graph of 27 April 1900 dispatched to Sir AC Onslow, the acting Governor of Western Australia, which said in part: ... I would now urge your responsible advisers to consider earnestly whether, in the best interests of the colony, as well as of Australia, they should not make a resolute effort to bring the Colony into Federation at once. Your responsible advisors will also, of course, take into consideration the effect of the agitation by the Federal party, especially on the goldfields, if Western Australia does not enter as an original State. It seems to me, under the circumstances, of the utmost importance to the future of Western Australia to join at once ..."

42. The population of the State went from 47,000 in 1890 to nearly 179,000 by 1900, the difference representing the effect of the goldrush at Kalgoorlie: Case For Secession supra n 9, 22. On the local consciousness of the sandgroper as compared with the eastern orientation of the new migrants on the goldfields, see Watt supra n 8,43,64 and see D Mossenson "Gold and Politics: The Influence of the Eastern Goldfields on the Political Development of Western Australia, 1890-1904"(unpublished MA thesis (UWA) 1952) 246. 43. See the references ibid. Note also that John Kinvan, a principal of the original Separation For Federation Movement met with the Dominions Secretary at the time that the 1934 Petition was being presented. As the Goldfields had opposed secession in the 1933 secession referendum (see Watt supra n 8,521, one might speculate as to whether the Separation For Federation movement was being revived as a tactical defence against the secession movement. See Battye Library Archives 446A, letters of 3 December 1934 and 8 March 1935 from the Domin- ions Ofice to Kinvan and the Secession Delegation respectively. See also Lyall et a1 Westralian Portraits supra n 5,95. Watt in fact notes that an anti-secession movement had sprungup on the Goldfields by 1934: supra n 8,57. 44. Quoted in full in the Case For Secession supra n 9,23-24. The case interprets this as a threat; The Case For Union supra n 40,29-30 said it was no such thing. 19901 TWO NATIONS, TWO DESTINIES 229

Faced with the implicit threat of the loss of the goldfields, which were obviously an enormous asset, and indeed an asset in which the State had invested a substantial amount of money through the Kal- goorlie Water Scheme, Forrest changed his position. On 17 May 1900, an enabling bill was introduced into the Parliament of Western Austra- lia, at which time he suggested that a referendum was required on the bill. However he proposed that the existing electoral roll, which excluded many of the new arrivals in the goldfields, be used for the purpose. On moving the third reading of the bill, he made h~ comments about the possibility of extrading Western Australia from Federation through an Imperial Ad, which was cited at the outset of this article. By the next day, he had apparently felt enough pressure to retract his suggestion as to who should be qualified to vote on the referendum provided by the bill and extended the vote to anyone who had resided in the colony in excess of twelve months." The effect of that about-face was to add 50,000 voters to the voting roles, the bulk of whom resided in the goldfields. Ultimately, a referendum was held on 31 July 1900, and the majority in favour was 25,109, the majority in the goldfields electorates being 24,517." Thus there was a marginal majority in favour of Fed- eration outside of the goldfields, which was used by Federal forces in The Case For Union as evidence of the fad that Western Australia was not "pushed and cajoled" into Federation. Indeed, Watt has argued that they were in fad bribed into Federation by the promise of a transcon- tinental railway and other financial support." Nevertheless the attitude of a great many Western Australians was set forth in the report of a joint select committee appointed by Forrest to consider the advisability of federation: It would have been better if Federation had come at a time when the colony could have entered the Commonwealth on more equal terms.48

45. The Case For Secession supra n 9, 24-25. Forrest may also have been enticed to change the electoral rolls by the promise of political opportunity; he entered Federal politics and become a Minister in Barton's government immediately aRer Federation: see Lyall supra n 5 for a review of Forrest's career. For this, he was dubbed "Aunt Sally" by the secessionists. 46. The statistics are set out in the Case For Secession supra n 9,26. 47. Watt supra n 8, 64. 48. Quoted in Sir H Colebatch "The Federation Campaign" (1951) 4(3) Western Australian Historical Society Jo 4,8. See also a letter from Sir Winthrop Hackett to Sir Alfred Deakin, 23 May 1890; Deakin Papers, National Library of Australia MS 1540, Item 2263, voicing similar sentiments (extracted in Lyall supra n 5,95). 230 WESTERN AUSTRALVW LAW REVIEW LVOL. 20

The core of secessionist sentiment: the interpretation of the federation process

Whatever the real reasons for t.he vote in the federation referendum, the dominant interpretation of the event which was to emerge was as follows: (i) the State was in fact forced to enter Federation against its will; (ii) this coercion was evidenced in the Preamble to the Constitu- tion, which recited that the five other States had agreed to join an indissoluble Commonwealth, but did not number Western Australia amongst these five because it had not so agreed; (iii) Western Australia's entry was optional, its leaders committed the State to the Federation process on the assumption that the State could later withdraw, and thus it was not part of the indissoluble portion of the Commonwealth (which was com- prised of the other 5 States); (iv) that the actual tenns of Federation were substantially unequal or unfair to the State." These four themes run throughout most of the secessionist literature of the Dominion League of Western Australia which co-ordinated the campaign leading up to the successful secession referendum of 1933. This interpretation of the Federation process was a critical rhetorical weapon for the secession movement, functioning in exactly the same way as De Valera's assertion, whether true or not, that the 1921 treaty between Ireland and Great Britain was forced on Ireland under the threat of "immediate and terrible war";50and in the way that the Plains of Abraham still function (as a symbol of oppression) for the Quebe- cois; and in the way that the Boer war functioned for the South African Dutch as General Hertzog steered South Africa on the path to independence in the 1930's. The claim of the secessionists in each case is not that they have changed their mind about their political associations, but that they never consented in the first place. The central power is

49. Examples of this can be found in the Papers of the Dominion League: see Battye Library PR 10563, especially pamphlets by Imvelun supra n 4, and Hartrey, supra n 17 supra n 4 and n 1. 50. Dawson infra n 74, 442, wherein is extracted a letter from De Valera to the Dominions Ofice of 5 April 1932. 19901 TWO NATIONS, TWO DESTINIES 23 1

presented as an oppressor and its acquisition of power a taking by oppression, a theft of an original liberty possessed by the smaller culturally identifiable group. It is upon this idea as much as any economic argument that the appeal of the secession movement was built. This is apparent in much of the literature produced by the Dominion League of Western Austra- lia. Many of the public speeches given by League members lamented the process by which the State was induced to enter Federation. Indeed the Case For Secession, drafted in large part by Keith Watson, then chairman of the Dominion League, opens with a discussion of this issue. A representative example of this point can be seen in the tract of A Lovekin entitled "Can We Secede from the Commonwealth" and read before the Dominion League on 23 May 1930. In the tract, he quotes Calvin Coolidge as follows: No plan of centralisation has ever been devised which did not result in bureaucracy, tyranny, inflexibility and decline. ... The States should not be induced by coercion or by favour to surrender the management of their own affairs. Lovekin then goes on to discuss the issue of "how and why we entered", dealing with the four points set out above.51 While all of the literature echoed with economic argument about the injustice of Federation, the theme of recapturing a lost liberty is always present as a counterpoint. The music of the movement clearly reflects that in its songs, such as 'Westralia Shall be Free", "Liberty's Light" and the "Dominion Anthem", the latter of which includes the following lyrics: Freedom on thy rock a-riven Kindle grey hill - alters, flaming Firm our fathers' feet were set Torch of Freedom's prisoned dawn; Valiant sons can ye the glory Till from sea to sea triumphant, of your heritage forget? Speeds full majesty of morn. Rise Westralia! Great Westralia! Rise Westralia! Great Westralia! Grand of old, Be Grander yet. See thy vast dominion born!s2

51. Lovekin supra n 4. 52. Extracted from Dominion Anthem: Lyrics by Bertram Pratt; music by G H Webster. The music for the Dominion Anthem together with Liberty's Light and Westralia Free (all by Pratt and Webster) were marketed commercially as a package by the DLWA under the title Three Songs from the Golden West: see Dominion League Papers, Battye Library PR 10563142. 232 WESTERN AUSTRALIAN IAW REVIEW [VOL. 20

Lyrical competence is not the issue. The point is that the Dominion League crafted a mythology of oppression and played on a sense of "lost liberty" and "distinct identity", and not only economic injustice, in order to galvanise a mass movement. That two thirds of the voters on 8 April 1933 voted for secession is in some measure a testament to the success of their tactics and to the secessionists' ability to give expression to a latent nationalism in the State.53

1900-1918:Early nationalist stirrings

Between 1900 and 1930, when the Dominion League was formed, there were a series of events which suggest that the burst of nationalism in the 1930's was not a recent fabrication, but the continuation of a tradition traceable back to the self-government movement itself. Nev- ertheless the manifestations of nationalism had a distinctly economic flavour until 1930. As early as October 1901, the Legislative Assembly passed a resolution protesting against the proposed Federal tariff. On 17 September 1902, a private members motion was introduced requesting the government to take steps to secede from the Commonwealth and thus regain its rule over the State's financial affairs." While that motion was never in fad put to the House, the Sunday Times was able to note by 1906 that "the yell of the secessionists is loud in the land. The call was heard in the Legislative Assembly and on 26 September 1906 the following resolution was passed: That the union of Western Australia with the other States in the Commonwealth of Australia has proved detrimental to the best interests of this State, and that the time has arrived for placing before the people the possibility of withdraw- ing from such a union.J5 The focus of resentment was the expiry of the five years of tariff autonomy offered as a carrot to Western Australia in order to induce her entry into Federation. The tariff issue became a central economic argument of the secession movement from that time forward.

53. It was also in large measure due to Watson who was in many ways the leading light of the movement. His writing and rhetorical style stand head and shoulders above that of modern politicians. The success in the referendum may also reflect other factors: supra n 12. 54. Watt supra n 444. See also G Greenwood The Future ofAustralian Federalism (Melbourne: Melbourne University Press, 1946) 161. 55. Western Australia, Legislative Assembly 1906 Debates vol29, 1871. 19901 TWO NATIONS, TWO DESTINIES

1919-1930: The focus on Western Australian financial disabilities under federation

Little further was heard of the issue until the end of the First World War when the Sunday Times actively took up advocacy of the secession cause.%A series of articles on the "federal bondage" appeared in February 1919 in the paper, and marked the beginning of a sustained anti-federal campaign which was to last until ownership of the paper changed hands in 1935.57Around the same time, Sir Hal Colebatch, then a member of the Legislative Council, made an impassioned speech, one long to be remembered by secessionists, regarding the economic injustice of the federal financial structure which left Western Australia perennially dependent upon Commonwealth grants.%Cole- batch, and the owner of the Sunday Times, MacCallum-Smith, would be key actors in the secession movement throughout the next 16 years and ultimately both became members of the secession delegation sent by the State to present its Petition to the United Kingdom Parliament in 1934.

56. This coincided with the acquisition of the paper by MacCallum Smith. The immediate provocation for the articles was the retention by the Commonwealth of income taxation powers which it had received from the States during the war effortupon the understanding that taxation powers would be returned to the States upon the war's conclusion. There was a distinct centralist sentiment in Canberra at this time , also witnessed by the centralisation of labour relations, leading to the celebrated confrontation between the States and the Commonwealth in the Engineers Case of 1920, infra n 64. 57. The secession movement is a lesson in the importance of press ownership. The Sunday Times was essentially a secessionist paper during MacCallum Smith's ownership. By 1930, Sir Walter James, once a federalist, but by then a principal in the secession movement, was a director and major shareholder in The West Australian (see Lyall supra n 5,111). It converted to the secessionist cause around this time. These two papers were instrumental in galvanizing the movement. And just as the editor of the Sunday Times founded the Secession League, and was later chairman of the Dominion League, another journalist, D J Gilbert headed the opposing Federal League and helped to write The Case For Union. The press created as much as reflected public opinion during the secession process. During the drafting -f The Case For Union, Somerville complained that he could not always get his uncensored views, especially on the futility of the Petition process, published in the secessionist-controlled press: see Somerville Papers supra n 8 (notes on The Case For Union, 18 April 1934) where Somerville alleges that Watson engineered the decision of the Sunday Times to refuse not to publish a Somerville letter as to the unconstitutionality of the Petititon. 58. The speech is noted as a key step in the secession movement in the Case for Secession supra n 9, xvi. 234 WESTERN AUSTRALIAN IAW RENIEW LVOL. 20

Public demonstrations agamk Federation appeared as early as 1919 and afier 1920, there was almost continuous attention devoted to the financial disabilities of Western Australia under Federation, not only by the secessionists, but by the Commonwealth as well. The State Legislature appointed a Joint Select Committee to enquire into the effect of Federation on the State's finances in 1921. By 1924, the Commonwealth Tariff Board had issued a report referring to Western Australia as being in a position comparable to the South after the American Civil War. It suggested that the State was on the "road to serfdom" and that the financial system was going to relegate West Australians to being "hewers of wood and drawers of Later in 1924, the Commonwealth itself was cornered into the appointment of a Royal Commission to enquire into Western Austra- lia's "Disabilities" under Federation. In 1925, the Secession League was formed primarily under the patronage of MacCallum Smith. It was virtually an arm of the Sunday Times, with the editor, Alfred Chandler, being the Chairman. That same year, the Disabilities Commission reported, recommending changes in the constitutional structure of the Commonwealth, including 25 years of tariff freedom in order to assist Western Australian development.@' What was critical for the secessionists in the report was the minority dissent by Mr J Entwistle who in one paragraph declared: In my opinion, Western Australia should never have entered the Federation, but having done so, there is, I feel convinced, only one complete and satisfactory remedy for the present diabilities, viz, Se~ession.~' This quote figured prominently in much secessionist literature aRer 1930 and was quoted at the beginning of the secession case presented to the United Kingdom Parliament. What was not disclosed is that Entwistle himself was a South Australian secessionist, a fad apparent from supportive correspondence sent to Watson during his days at the helm of the Dominion League.Q

59. Australia, Parliament 1923-1924 Parliamentary Papers 709 and 1727,27. 60. A fuller account of this period can be found in Watt supra n 8. See also c 25 of the Case For Secession supra n 9 for a review of these events. 61. Case For Secession supra n 9,3. 62. Undated letter from Entwistle to Watson in Watson's Papers, Battye Library Archives 1801A. 19901 TWO NATIONS, TWO DESTINIES 235

By 1927, the Commonwealth was drawn into appointing a Royal Commission on the Constitution to deal not only with the complaints of Western Australia but of the other smaller states, where anti-federal sentiment was growing. The report of this Commission in 1929 detailed a number of the disabilities suffered by Western Australia under Federation and added fuel to the secessionist fire. The report of a British Economic Mission investigating trading possibilities with the State issued in 1928 anticipated these concl~sions.~ The popular complaints against Federation were not simply economic. The drift toward centralisation in the Commonwealth was a central complaint and the threat to local autonomy inherent in the Engineers decision of 1920'j4became a focal rallying point. Even Collier, the Premier in 1928, and no friend of secession, expressed discontent: Bit by bit the Federal authority is growing at the expense of the State. We are drifting as sure as fate toward unification. This means ruin. This enormous country cannot be governed from a political centre by men almost entirely ignorant of conditions in the far comers of the land.65

63. See supra n 60. The function of the British Economic Mission was to explore the expansion of trade with Britain and to investigate possibilities for British emigra- tion. This reflected the continuing involvement of Britain in Australian affairs despite the Balfour Declaration of 1926, and served as a precedent when the Tasmanian premier called for a British Mission in 1934 to assess the grievances of the small States: see "State Disabilities" West Australian 23 March 1935 (extracted in the Somerville Papers, supra n 8). 64. Amalgamated Society of Engineers v The Adelaide Steamship Co (1920) 28 CLR 154. The decision is criticised in the Case For Secession supra n 9, 51-53. 65. Quoted in the Case For Secession supra n 9,3. Collier expressed similar views in early 1935: see "State Disabilities" supra n 62; and upon the rejection of the secession Petition in 1935: see "Secession Petition" West Australian 24 May, 1935 (extracted in the Somerville Papers supra n 8). 236 WESTERN AUSTRALTAN IAW REVIEW IVOL. 20

The birth of a mass movement - the Dominion League of Western Australia

Despite the evident discontent with Federation in the state, the Secession League expired before 1930, due to a shortage of hnds and, to a degree, of enthusiasm, and in the State election of April 1930, secession was not an issue.@Nevertheless, the Sunday Times kept the secession movement alive. In May 1930, the Dominion League of Western Australia was formed to promote the secession solution. The title of the association was chosen to emphasise that secession would not mean withdrawal from the British Comm~nwealth.~Through this, the Western Australian movement sought to distinguish its aims from those of the Irish republicans. The Imperial tie would remain important to secessionists and federalists alike throughout the entire period of the secession movement. The Dominion League rapidly showed itself capable of holding large public gatherings. It soon gained the endorsement of the new premier, Sir James Mitchell, as is evidenced by a letter to the League which was immediately circularised as a pamphlet.@The world econ- omy was in a tailspin by 1930, and the Commonwealth tariff of June 1930 was perhaps the catalytic event which caused the explosion in secession support.@ Between 1930 and 1933, the Dominion League was extremely active. It held frequent public meetings and was able to establish itself as a substantial political force within the State. In numerous poems, anthems, speeches, and tracts, the League consistently hammered out its twin themes: the economic injustice of federalism, and the need to recover the lost liberty of the West in the face of a power hungry central government controlled by the eastern state^.^

66. Watt supra n 8,45-46. 67. Ibid, 46. 68. DLWA "A Fight for Freedom from the Fetters of Federation". DLWA Papers: Battye Library PR 10563119. 69. Watt supra n 8, 46. Perth felt the depression keenly by 1930 and already experienced some labour violence. 70. Numerous examples can be found in the DLWA Papers: Battye Library PR 10563. 19901 TWO NATIONS, TWO DESTINIES 237

The August 1931 State Conference of the Dominion League opened with a street procession which grabbed enormous media attention. At the meeting, the president, Chandler (who was still the editor of the Sunday Times), warned that "if the Premier does not want to be politically abolished", he would be wise to arrange a referendum forthwith.71A Bill was ultimately introduced by the Premier who had formally declared his support of secession in November of that year. Whilst the Bill was passed by the Legislative Assembly, the Council insisted that the referendum be held within six months, an amendment in turn rejected by the Assembly, leading to the defeat of the Bill. But. the public sentiment stirred up by the League was too strong to be derailed by such political posturing another referendum Bill would not be long in coming.

The constitutional issue and the secessionist response

The Opposition Leader, Collier, was not unsympathetic to the grievances of the secession movements during this time, but (like many others) said the objective was unattainable and impractical. This raised a constitutional question that the movement was slow to address.72 The problem facing the secessionists was the Balfour Declaration, the concluding adof the Imperial Conference 1926. That conference was provoked in part by the King - Byng crisis in Canada that same

71. The threat is quoted in Watt supra n 8,47. The DLWA published a pamphlet summarising the proceedings of the 1931 conference replete with photos of the procession, the DLWA Constitution, and the resolution to seek a secession referendum adopted at the Conference: DLWA Papers: Battye Library PR 105631 9. The pamphlet refers to the instrumental role of the Chairman H K Watson and the Sunday Times in generating public support for the movement. 72. The issue was raised as early as 1931 by Professor Beasley in letters to the West Australian. On Beasley's later opposition to secession, see supra n 159. As will be discussed below in the text, slightly more favourable opinions were obtained from other constitutional scholars. As well the secessionists relied on an opinion that the reference to indissolubility in the Preamble to the covering clauses of the Constitution was of little significance. This opinion was taken from the works of J Morgan KC, a constitutional scholar who later argued on behalf of the State for the receivability of the Petition before the Joint Select Committee. See DLWA Papers: Battye Library PR 1056318, 10. 238 WESTERN AUSTRALIAN LAW R,EVlEW [VOL. 20 year, where, in the reverse of the Australian crisis of 1975, the Governor-General rehsed to dissolve Parliament at the request of the Prime Minister. The following was declared in the final report of the Conference: The Committee are of the opinion that nothing would be gained by attempting to lay down a Constitution for the British Empire. .... There is however, one most important element in it which, from a strictly constitutional point of 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 be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. ... Every self-governing member of the Empire is now the master of its destiny. In fact, if not always in form, it is subject to no compulsion whatever.'" This doctrine was given further content through the Imperial Con- ferences of 1929 and 193074and ultimately formed the basis of the Statute of Westminster 1931, which in its preamble purports to recognise rather than enact this The thrust of the Balfour Decla- ration was to recognise that the principal Dominions of the Second Empire were now effectively sovereign nations subject only to the fact that their constitutions were embedded in legislation of the British Parliament. In consequence, it would no longer be constitutionally appropriate for Great Britain to interfere in their internal affairs, notwithstanding its ostensible power to do so. This is a doctrine ultimately traceable back to the American revolution itself, where the attempt by the Empire to tax the Colonies through the imposition of stamp duty led to their secession. In reaction, British colonial policy was liberalised, an exercise that started to

73. Report of the Imperial Conference 1926, Summary of Proceedings (1926) Cmd 2768, 12-36, c VI, 1. 74. See extracts in R M Dawson The Development ofDominion Status 1900-1936 (London: Oxford University Press, 1937) 373-41. There is a bloated literature on the evolution of Dominion status. Some useful works are those by A B Keith Responsible Government in the Dominions (Oxford: Clarendon Press, 1928); id The Constitutional Law of the British Dominions (London: MacMillan, 1933). See also KCWheare The Statute of Westminster, 1931 (Oxford: Clarendon Press, 1933) and infra n 213. 75. British Statutes, 22 Geo.V c.4. The Ad in its sub-title and Preamble purports to recognise Dominion autonomy as declared at the Imperial Conferences of 1926 and 1930; and s 4 thereof provides statutory confirmation by proscribing Imperial legislation absent of the request and consent of the affected dominion. TWO NATIONS, TWO DESTINIES assume a definite shape with the 1839 Durham Report, which made recommendations as to the appropriate method of governing the remaining colonies of British North America.%Persistent agitation by the Colonies of the Second Empire from 1837 through to 1926 won them increasing control of their internal affairs, the most notable landmarks in this process being the grants of self-government to various colonies, the United Kingdom Colonial Laws Validity Act 1865, the grants of federal constitutions to Canada, Australia and South Africa, and the 1907 Imperial Conference on reservation and disallowance of Imperial Legi~lation.~The process by which the colonies, or the Dominions as they came to be styled, gained control over their internal and ultimately external affairs was an incremental one which reflected both the lessons learned by the British in relation to the American Colonies and the persistent demands by the remaining colonies for the expansion of their powers of self-go~ernment.~~

76. The immediate stimulus to the Durham Report was the MacKenzie King rebellion of 1837 in Upper Canada. The possibility of another American secession accelerated the change in British colonial policy. 77. The 1907 Conference loomed large in the arguments before the Joint Select Committee. The Commonwealth noted arguendo that the Australian States were denied independent representation at the conference, which was used as evidence that WA possessed no right to approach the UK Parliament directly in relation to federal constitutional matters: see Report by the Joint Committee of the House of Lords and the Howe of Commons appointed to consider the Petition of the State of Western Australia UK, Parliament House of Commons Parliamentary Papers 88 (1935) ("Report of the Joint Select Committee"), argument of Greene on 11 April 1935. For some sources on the evolution of British colonial policy, see Schuyler Parliament and the British Empire (New York: Columbia University Press, 1929); and A B Keith Constitutional History of the First British Empire (Oxford: Clarendon Press, 1930). 78. The British, through this process, took to heart the admonition of Burke in commenting on the American demands for self-government: [Alre we to turn to them the shameful parts of our Constitution? Are we to give them our weakness for their strength? Our oppro- brium for their glory? And the slough of slavery, which we are not able to work off, to serve them for their freedom? If this be the case, ask yourselves the question: Will they be content in such a state of slavery? If not, look to the consequences. Reflect how you are to govern a people who think they ought to be free and think they are not. Watson used this quote in his advocacy of unilateral secession upon the rejection of the secession Petition: Watson supra n 6, 10. It is remarkable that the secession movement was able to rely on both Burke and Paine in justification of their demands. See Hartrey supra n 17, 10. 240 WESTERN AUSTRALIAN LAW REVIEW

The irony of the Balfour Declaration is that it amounted to a recognition that the Dominions had effectively seceded from the control of Great Britain. The Empire by 1926 was a mere voluntary association of equals. Yet this same declaration would be used to deny Western Australia's claim to self-determinati~n.~ It was the failure of the Western Australian secession movement to grasp the implications of the Balfour Declaration which spelled its doom. The approach of the secession movement from the beginning was to put its faith in the sovereign power of the British Parliament to enact remedial legislation whenever a petitioner could persuade its members of the justice of its cause. Thus, in 1900, when Forrest reluctantly advanced legislation to enable a Western Australian referendum on the Constitution Act, he pointed to the United Kingdom Parliament's power to dissolve that "indissoluble" federation. And, in 1930, when questions were raised as to the feasibility of the secession scheme, Imperial Parliamentary sovereignty was again the answer. The Honourable A Lovekin MLC, in his speech to the Dominion League on May 23 1930, addressed the question of the method of secession: How did we enter? We passed a Bill. We referred it to the people who answered affirmatively in favour of it. We then joined with the other states in asking the Imperial Parliament to ratify our desires by means of an enabling act. ...West- ern Australia need not have joined, but did so, the Imperial Parliament having made special provision for our entry. We can only go out in the same way. We must pass a Bill and refer it to the people. Ifby substantial majority, the voice of the people is in favour of the Bill we pass, our next step will be to present it to the King for assent. Before he can do so, the Imperial Parliament must amend the present enabling Act but such is a simple matter. ... Whether the Imperial Parliament would so adis another matter. The decision, of course, will depend on viewpoint of the people and the case we can present.80

79. It should be noted that the Empire had become, by 1926, what Garran claimed a federation could never be - a voluntary association. Such a situation would "destroy its strength. A federal union must in terms be perpetual else it contains within itself the seeds of its own dissolution". Yet, he noted that, while legally perpetual, a federation is "in its own nature essentially voluntary; there is a sort of inconsistency in retaining members against their will: 'Fraternity and equality - without which federalism is impossible, cannot be enforced at the sword's point." Garran supra n 31,34. The latter quote contains an extract from Freeman Federal Government 91 as cited by Garran. (He did not provide publication details). Thus, as a practical matter, the Balfour Declaration expressed the essence of federalism yet, as a legal matter, the British and Australian Common- wealths were fundametally different in character. This is the source of the irony noted in the text. 80. Lovekin supra n 4,8. 19901 TWO NATIONS, TWO DESTINIES 24 1

Lovekin then went on to deal with other objections to secession including the fact that the federation is "indissolublen.He interpreted this to mean the Crown is indissoluble but that the federation must of necessity be soluble, because to say otherwise would be to suggest that the Imperial Parliament had lost its legislative sovereignty in relation to Au~tralia.~'Lovekin cited Quick and Garran in their Annotated Constitution Act to suggest that "indissolubility"was simply intended to suestthat no alterations to the Constitution should be made which are "inconsistent with the continuity of the Commonwealth as an integral part of the British Empire". He also went on to quote the Diceyan position that no parliament can bind its successors, concluding that the British Parliament can therefore never create an indissoluble federation.@ Lovekin expressly addressed the criticism in his speech that an independent Western Australia would not be loyal to the Crown. The trend towards what he called exchanging "London for Moscow* was a tendency of the eastern states not the westB3Socialist centralism was for the secessionists the antithesis of British Liberty. Finally, he went on to address the criticism that secession was only possible with the consent of the majority of the people and a majority of the states in accordance with section 128 of the Constitution. In his view, that provision only applied to amendments to the Constitution itself and not to the ease of "retirement from the partnership*. He added that: to alter a deed ofpartnership is one thing and needs consent of the partners. But any partner is entitled to terminate his partnership on fulfilment of his obligations to his co-partners.84

81. Ibid, 9-10, 12. 82. Ibid, 10. 83. Ibid, 11. This comment reflected the general conservatism of the secession movement. 84. bid, 11. It should be noted that Garran expressly rejects this view in The Coming Commonwealth supra n 31,27,34 and 67. Thus, the invocation of Garran as supporting the secessionist view was a little disingenuous. Indeed Garran was ultimately to be the driving force behind the drafting of The Case For Union (as is apparent from the Somerville Papers supra n B), a document which implied that federation was not soluble and contained a veiled threat of force directed at the secessionists. Nevertheless, there was some sense in the secessionist interpretation of "indissolubility"; the preamble to the covering clauses recites that the States (WA is not mentioned) ''have agreed to unite in one indissoluble Federal Commonwealth under the Crown ... and under the Constitution hereby established." The agreement to unite was read as an agreement to unite under the Constitution hereby 242 WESTERN AUmaALIAN IAW RENIEW

Obviously Lovekin was not an adherent of Burke. His position reflects the compact theory of federation which had in fad found some support in constitutional decisions of the High Court prior to 1920. The basis of the compact theory is that the states themselves are sovereign. This was the very doctrine formulated by the American secessionists during the early part of the nineteenth century and which they put into practice with the secession of the southern states from the Union during the 1859-1860period and the subsequent formation of the Confeder- acy.% The analogy with the American Civil War was in fact to play a significant rhetorical role in the opposition to secession, and it is an analogy that Lovekin addressed directly. Specifically, he dealt with the argument that the Civil War forever destroyed the "dangerous doctrine" of the right of a state to secede from a federal union: The American Constitution was people made without any super-imposition. In our case we have the Crown super-imposed. American secession was prevented by superior force of arms. There was no Crown to appeal to. Force of arms is unthinkable in our case; indeed impossible so long as we are under the Crown. Reason and justice alone must prevail, not force. Besides, if we wish to retire,

established. But the agreement to unite indissolubly was not under the Constitu- tion, but only under the Crown. Thus it was the Imperial not the Federal tie which could not be broken, and this bond being under the Crown, was one which the Crown, with the advice of the Imperial Parliament, could redefine at will. Lovekin makes this point, as did Colebatch in his speeches (see DLWA Pamphlet, Battye Library PR 10563/28), and it was ultimately made by Morgan KC to the Joint Select Committee in arguing the Petition (See Report supra n 77, 11-13). Thus, far from being unsophisticated in their views, the arguments of the secessionists on the constitutional point much resembled the case as ultimately put by an eminent constitutional scholar. Morgan's argument went on fUrther to emphasise that the reference to indissolubility was only in the Preamble and not in the covering clauses, let alone the Constitution itself: Report supra n 77, 12-13. 85. The primaly exponent of the American compact theory is John C Calhoun who set out his views in "A Disquisition on Government" and "A Discourse on the Constitution and Government of the United Statesn,both of which were compiled before 1850 but published posthumously. Editions of both are printed in R K Cralle (ed) The Works of John C Calhoun vol 1 (New York: Russell & Russell, 1968). At 300 is set out a concise statement of the right of secession upon the violation of the federal compact, a right derived from the view that the federal government is a mere agency of the sovereign States. A good but brief discussion of Calhoun's views can be found in H W Hyman and W M Wiecek Equal Justice Under Law: Constitutional Development 1835 - 1875 (New York: Harper and Row, 1982) 117, 138-140 and at 207-223, a discussion of how the American South put his views into practice in 1859-1860. TWO NATIONS, TWO DESTINIES 243 119901 why should our neighbours force us to remain? Such could only be for mercenary reasons and these would be unworthy of them.86 Lovekin's next target was the argument that the State ought to petition the Commonwealth Parliament for leave to retire. His response bristled with nationalist sentiment: I am entirely opposed to this course. Firstly it involves an admission that we cannot retire without consent of other states - a position I deny. The King made and the King can unmake. Such a course [to petition the Commonwealth] ... is on all fours with the requests which used to be made when the people were demanding responsible government - 'please Mr Secretary of State will you tell us on what terms you will permit us to govern ourselves in our own way.87 In short, the essence of the secessionists' position was that the Australian states retained their sovereignty and could thus withdraw at will from the federal compact, subject however to the right of the Imperial Parliament as arbiter to adjudicate on the legitimacy of the exercise of the right of withdrawal. Far from being an unsophisticated position, the secessionists' legal viewpoint was an attempt to reconcile the concept of self-determination with the concept of allegiance to the Crown. Glynn had earlier argued, in the Commonwealth Law Review of 1906, that unless the Commonwealth Constitution could be amended to permit secession pursuant to section 128, there was no other way out except by a double revolution, directed as well against the Empire as the Commonwealth... As yet the Divorce Court applies only to the Married, not to the Federal, State.&

86. Lovekin supra n 4,12. Contrast the views of Garran supra n 31,34: Secession is a revolt and must expect to be dealt with as a revolt This happened in America ... It was then established at sword's point that there was no right to secede; and the same thing was ... decided by the Courts. The opposite opinion rested on the argument that the Constitution was silent and gave no power to coerce a rebellious State. But it was held and has ever since been undisputed law that the union is 'an indestructibleunion of indestructible States' and has power to do what is necessary to assert its indestructibility. See infra n 145. 87. Lovekin supra n 4,13. 88. Glynn supra n 31, 204. Garran, too, considered that secession could only be achieved by rebellion which, in turn, could legally be suppressed by force supra n 31,27,34-37. He seems to repeat this view on the last page of The Case For Union (quoted below in the text). 244 WESTERN AUSTRALLAN LAW RGVlEW WOL. 20

The idea that self-determination could be made compatible with allegiance to the Crown was an attempt at an elegant solution to the dilemma raised by Glynn. It allowed the West Australian separatists to distinguish their claim from that of the Irish and the American republicans. It addressed the loophole in the Balfour Declaration and ultimately the Statute of Westminster: how was the right of self-determination to be exercised by a component part of a federal member of the Empire? The British government by 1930 had recognised the right of self-determination in respect of members of the Empire (by then also styled a Commonwealth) and had acknowledged that continued membership of the Commonwealth was voluntary. Force would not be exercised if a member of the Commonwealth elected to withdraw,8g notwithstanding the fad that the Imperial tie was said to be indissoluble, a suggestion seemingly confirming the interpretation of "indissolubility" advanced by the Western Australian secessionist^.^ Thus the Western Australian secession Petition would ultimately be a test of the extent to which the Balfour Declaration had actually recognised a general right to self-determination within the British Empirea9I Lovekin's discussion however says much about the legal power of the British Parliament and nothing about the notion of conventional limitations on British power. The right of Dominion self-determination was the essence of the Balfour Declaration, but this was achieved

89. Supra nn 73,74. 90. The preamble to the Statute of Westminster implies that while the members of the Commonwealth are freely associated, they are united by allegiance to the Crown and that alteration of the Crown relationship requires the consent of all. In that sense, the British Commonwealth is indissoluble; to cut the tie to the Crown which unites all of the members of the Commonwealth would require a rebellion. But to merely withdraw from the pale federation called the British Commonwealth can be done at will, without necessarily terminating the relationship with the Crown. See Dawson supra n 74,384,411-412. 91. As will be seen, the Balfour Declaration was ultimately interpreted as articulating the right of self-determination of the then existing members of the Common- wealth. The later UN Charter offers a significant contrast. Article l(2) lists, among the purposes of the UN, the development friendly relations among nations, based on respect for the principle of equal rights and self-determination of peoples. While clause 2(7) excludes UN consideration of the domestic affairs of nations, this has not been interpreted to preclude UN concern with the claims to self-determination of distinct peoples within larger States: see E Luard A History of the United Nations (London: MacMillan, 1989) vol2, 7, 162. The irony of the Balfour Declaration noted in the text above resides in its concern with the self- determination of States rather than Peoples. TWO NATIONS, TWO DESTINIES

simply by imposing conventional limitations on the exercise of the legal sovereignty of the United Kingdom Parliament. This was perhaps a general defect in the thinking of the secessionists, but it was not entirely unaddressed. Indeed in 1931, Sir Arthur Berriedale Keith, the eminent commentator on the Imperial Constitution, was invited to express his views on the aims of the Dominion League. His response was published in the Western Australian Daily News on 27 November 1931 and provided in part as follows: That decision [ie the original decision to federate] binds the states unless and until it is proved that continued membership of the Commonwealth is destructive to its welfare, when the right of separation might be claimed. The Imperial Parliament's authority is in formal law absolutely sovereign, and cannot be relinquished; therefore it still has power to exclude a state from the operation of the Commonwealth Constitution Act, nor will the passing of the Statute of Westminster diminish in law its sovereign power, but its exercise would be totally unconstitutional and could not be contemplated by the British Govern- ment unless proof of absolute necessity for the innovation could be adduced. It would be extremely difficult to adduce such proof.92 Notwithstanding the negative overtones of the comment, the opinion contained a glimmer of hope for the secessionists. It recognised the abstract right of secession and more importantly, the possibility of the Parliament serving as an arbiter on a secession request, but emphasised that only extreme conditions would induce the British Parliament to accede to such a request. Thus any petition for secession sent by the State to the British Parliament ought to be received, and might be granted if it met Keith's stringent conditions. This opinion served as a blueprint for the fbture actions of the secessionists. They proceeded to procure a mandate from the people authorising the presentation of a secession petition to the Imperial Parliament, and then set out to document in meticulous detail the circumstances of extraordinary necessity which mandated extraordinary relief to be granted. This documentation was ultimately presented to the British Parliament in the form of the Case For Secession which was delivered to the members of both Houses at the time of the presentation of the Petition. However, by late 1934 when the Petition was presented, circumstances had already conspired against the secessionists. The radical claims to independence by the Irish and the South Africans were being aggressively pressed at this time, as were the demands for Home Rule

92. Sir A B Keith Letters Imperial Relations, Indian Reform, Constitutional and International Law (London, 1935) no 175. 246 WESTERN AUSTRALIAN LAW EiEVIEW WOL. 20

by the Scottish Nationalists. In consequence, the blatant destructive power of the self-determination principle that lay behind the Balfour Declaration and the Statute of Westminster began to seem much less attractive to the British. They had come to grasp the logic of the statement by Bonar Law in 1920 on the Government of lreland Bdl that Dominion Home Rule means - and means nothing else - that he (Asquith) is prepared to give an Irish Republic. ... there is no difference between honestly granting Dominion Home Rule and openly giving self-determination to the elected representatives of Southern Ireland ...93 The South fiicans, in Ndlwana v Hoffnyer, were later to coin an aphorism which summed up the dangerous implications (for the Brit- ish) of the devolution of the Empire implied by the Statute of Westmin- ster: "Freedom once conferred cannot be revoked.'% Thus, as the Empire was rapidly crumbling under the logic of self- determination, the British were in no mood to encourage self-determination in the constituent parts of otherwise federated dominions. The growing complications in the political situation of Western Europe by 1934 suggested that it would be unwise for the British to alienate any potential military allies. It was clear by then that the Irish were going to be of no assistance. Thus, the wider principle of self-determination behind the Balfour declaration rapidly became the more limited notion of non-intervention in the affairs of existing recognised units within the Commonwealth. Nevertheless the secessionists proceeded from 1931 onward naive in the belief that the British Parliament was the ultimate guarantor of the right of self-determination possessed by all British descendants. They were not sensitive to the turning tide of Imperial politics and to the traumatic loss of will in British public life. 1932 was the year that the Oxford Union supported the proposition not to fight for King and country. As well, in the debates of 24 November 1931 on the Statute of Westminster Bill as it pertained to the Irish Free State, Churchill berated the unwillingness of the Parliament to uphold Britain's rights under the "treaty" with Ireland. Mr De Valera, soon to become the Irish leader, by this point was openly asserting the power of the Irish Dail to repeal the Irish Free State Act of 1922 which gave effect to the ''treaty"

93. Quoted in Dawson supra n 74,428. 94. Supra n 28. 19901 TWO NATIONS. TWO DESTINIES 247 of 1921 between Britain and Ireland. Churchill's disgust at the weak- kneed response of Britain to this provocation was unconcealed: What has astonished me is that the Government has never disputed the principle that clause two of the Statute gives legal power to the Irish parliament to repeal the application to Ireland of the Irish Free State Act of 1922. I imagined that we should hear this disputed by legal authorities ... This Irish Treaty may at no distant date become a matter of grave real practical politics. Suppose that a change of government should occur in Ireland, you will be immediately confronted with a very grave crisis on this Treaty, and will be responsible if you weaken in any way the moral - and in the moral I include the legal - rights of this country to defend the Treaty. We are in such a pusillani- mous mood, apparently, that it almost has to be made a matter of apology, almost regarded as an adof impropriety, for any British representative to put forward modestly and politely with studious and calculated courtesy, claims that are indefeasible in law.95 The shift in the British attitude toward its ability to use its legal powers in relation to the colonies was apparent in the shifting attitude of Keith between 1931 and 1934. In correspondence published in The Scotsman on 20 November 1934, Keith commented on the Western Australian secession Petition as follows: It is perfectly true that the Imperial Parliament could, so far as mere law was concerned, destroy the Commonwealth Constitution, and that the Common- wealth has not declared the Statute of Westminster in force. But it would he a revolutionary action and wholly unconstitutional for the British Parliament to pass at the instance of one state any legislation interfering with the federal tie, and it is inconceivable that the government of the State can expect any such adion. ... Whatever is to be done will have to be done by the action of the State and its people in persuading the rest of Australia of the justice of the claim for better terms.... The truth is that Western Australia acted unwisely in accepting federation, and the obvious lesson to be derived from her fate is that the Indian states will be well advised to consider closely the position which they will occupy if they accept federation without securing the right on due notice to withdrawal. Federalism in theory and practice may easily mean the sacrifice of some part of the whole for the benefit of the other parts.Y6 When challenged by the Western Australian secession delegation, Keith, in a hrther letter of 26 November 1934, tried to reconcile his earlier 1931 opinion (upon which the secessionists had relied) with his current backtracking by requiring the state vote in favour of secession to be "unanimous". He further suggested that the Commonwealth's Case For Union, compiled by Sir Robert Garran and others, adequately

95. Quoted in Dawson supra n 74,440. As to secessionist praise of the eternal justice of the Mother of Parliaments, see Watt supra n 8,80. 96. Keith supra n 92 no 118. 248 WESTERN AUSTRALTAN MW RENIEW [VOL. 20 rebutted Western Australian claims as to the gravity of its economic disabilities. He then went on to quote a statement by Premier Collier, made in 1932 while in opposition, that "the Imperial Parliament has learnt its lesson and would not give a consent which might cause disruption in any Dominion of the British Empire". Keith went on to suggest that the secession delegation "has a definite duty to perform, but its purpose cannot be achieved without disaster to the Empire.% Political realities had thus rapidly erased the possibility, envisioned by the secessionists, of the Imperial Parliament playing the role of adjudicator on self-determination claims made from within federations. The practical result of this position was that self-determination would have to be achieved by West Australia the American way. For in the end, there are only three possible ways of resolving secession claims within a federation. The first is by resort to a third and neutral umpire who has some claim to legitimate recognition by both sides. The second is by direct negotiations between the parties (as was the case with the English in dealing with the Second Empire). The third is war (as was the case with the English in dealing with the First Empire, and with the Union in forcing down the Confederacy). What was taking place in the Empire during the 1930's was the abdication of sovereignty by the British in their Imperial relations, in their foreign relations, and ultimately even by their regal representative. It is no wonder that in response to the ultimate decision of the Joint Select Committee of the two Houses of the British Parliament not to receive the Western Australian Petition, the Chairman of the Dornin- ion League, Watson, who had many times expressed faith in the perfect justice of the British Parliament, could only exclaim "History will record this as the greatest and most despicable abdication of all time."gB

97. Ibid no 119. 98. "Mr Watson Attacks British Ministry" The West Australian 27 July 1935. See extract in the Somerville Papers, supra n 8 (Clippings file). 19901 TWO NATIONS, TWO DESTINIES 249

The corollary of Imperial abdication was the emergence of a fully sovereign Australian nation. The secessionists did not see this process and history raced past their movement in consequence. The sovereign with which they had to deal was not the British sovereign but the new sovereign which had emerged in its place. The Australian sovereign, namely the Australian people, in fad, would be expressly recognised in the decision of the Joint Select Committee on the West Australian Petition.

The secession referendum

Thus with blind faith in Imperial power, the Dominion League continued its agitation throughout 1931 and eventually secured a commitment from Premier Mitchell to introduce new secession referendum legislation, which was duly done in 1932. This provided for a two-pronged referendum, which on the 8th May 1933 returned a result in favour of secession by a 2-1 margin, rejecting at the same time the possibility of resolving the State's grievances through a constitutional convention, a solution recommended by Commonwealth authorities.% The campaign was intense, and much of the secession literature noted above was generated during this period. The timing of the secession agitation was in a sense fortuitous, as the depression was at its worst in the 1932-1933 period. Thus the acceleration of nationalism promoted by the League coincided with the

99. The suggestion was made by Premier Lyons during his visit to Perth during the referendum campaign. He was violently heckled throughout the visit and his presence seemed to provide a stimulus to the secession campaign: see Watt supra n 8,48 and 56. This was, perhaps, one of the moments that convinced 1,yons of the seriousness of the situation. Within a month after the referendum vote, he introduced a draft Bill to set up the Commonwealth Grants Commission into Parliament. Within two months, the composition of the Commission had been announced. At that time, Lyons also announced a proposal for the constitutional convention he had promised before the referendum. However, the proposal was later dropped: Watt supra n 8,56. On the actual referendum results, see Watt supra n 8,49-55, who provides a breakdown of the results. For sample DLWA campaign literature leadng up to the referendum and materials from its victory celebrations, see Battye Library PR 10563. Some of these materials have been discussed above. 250 WESTERN AUmaALIAN LAW RENTEW bottom of an economic trough and created the perfect conditions for a dramatic rejection of existing Australian political arrangement^.'^ Timing was also propitious for the movement in a more sinister respect. It is perhaps instructive to note that the White Australia Policy was finding its fullest vigor at the very same time that Aryan racism was coming to the fore in Europe, and contemporaneously with the intensification of Afrikaaner nationalism in South Africa. As mentioned earlier, the secessionists happily climbed aboard this freight train of hatred and were eager to point out that Australian centralism threatened white supremacy, by permitting racial intermixture with the Aborigines and other ethnic groups, and by failing to ensure that the white population was numerically dominant throughout Australian territory. A passage from T A Hartrey's "catechism" for referendum campaigners provides sufficient testimony, through his retort to sug- gestions that secession would endanger the White Australia Policy: The people of this State are as keen to enforce the principle of a White Australia as those of the Eastern States. The Commonwealth's assistance in this matter is best illustrated by the example of Port Darwin, Northern Terri- tory. When this Territory was under the rule of South Australia, Darwin had a

100. It was a period when communism was growing in influence; resentment of wealth was intense. A sample of this sentiment can be seen in the following extract by T J Hughes entitled "Labour's Load". Money power is triumphant. The last two years have been those of signal victory ... The God of Interest is supreme! What a merciless God it is ... [the working class] have been unmerci- fully thrashed by the financial interests ... unemployment [is] rampant throughout Australia ... with its train of deprivation, distress and destitution, bringing headache and heartache to the working and lower middle classes, producing a problem beyond solution by the world's greatest thinkers. Extracted from Battye Library PR 4636, which is a larger tract attacking a WA Labor MLA who deserted the party and supported secessionism. Secession was always more a NationaVCountry Party theme than a Labor one. Nevertheless, while the secession movement had weak links with the Labor Party, it was still able to capitalise on anti-Capitalist sentiment, by portraying the East as a financial and industrial power holding the destitute West in thrall. See, for example, DLWA Campaign Pamphlet "The Financial Effects of Secession": Battye Library PR 10563126 which depicts Sir Charles Nathan, by then a supporter of the Federal League of WA, as taking instructions from a corpulent man labelled "Sydney Capitalist". The movement was thus able to cut across party lines to some degree by appealing to Labor voters on these grounds while, at the same time, attracting conservative Nationalists and Country Party members. Watson himself was once on the State National Party Council, although he was expelled due to the radical nature of his secessionism: Watt supra n 8,59. TWO NATIONS. TWO DESTINIES

population of about 2500 whites, besides various aboriginals and coloured persons. Since it was taken over by the Commonwealth in 1911, millions of money have been squandered upon all sorts of projects and in every direction. Yet today the white population is less than 2000 persons, and the coloured population constitutes one of the most polyglot assortments of aboriginals and Asiatics, half-caste white-and-yellow, half-caste white-and-black, and half- caste yellow-and-black, besides the lesser degrees of mixed bloods, that is to be found in any part of the world. If Western Australia cannot do better than that for a less expense, at least she cannot do much wor~e.'~' The Dominion League was not without opposition in the referendum campaign, but was able to overwhelm its challengers. The Unity League concentrated on the constitutional issue, relying on opinions expressed by Professor Beasley of the Law School of the University of Western Australia, and published in the papers. The League contested the referendum but did not agitate against the later Petition, for on receipt of a further Beasley opinion in June 1934, it disbanded, secure in the belief that secession was unattainable. The Federal League of Western Australia was largely a one-man outfit founded and operated by D J Gilbert, a journalist who was later to be drafted by the Commonwealth into the process of preparing The Case For Union. The answer of the Federal League to the Dominion League arguments was in part economic, but it too in large measure was a nationalistic appeal. It invoked the "one nation one destiny" notion and further introduced

an element of fear into the campaign.- - It advocated fiscal and constitutional reform in lieu of secession and warned: Remember that the cruelest war in history, which cost tens of thousands of lives, was fought on this same question. We do not want to breed a seditious faction in Australia.'02 Both the positive and negative appeals made by the Federal League to pan-Australian sentiments seemed to arouse little positive response. Local nationalism was a sentiment very difficult to combat. It was something that the Commonwealth would only later come to realise was a serious problem; even the hostile reception given to Prime Minister Lyons during the referendum campaign provoked little sense

101. Hartrey supra n 17, 15-16. The document, published at the opening of the referendum campaign, was compiled by Hartrey on behalf of the DLWA and expressly described itself as a "catechism" for referendum campaigners (see the Foreword). 102. Federal League of WA "A Word to the Wheatgrower" (1933) Battye Library PR 1056212. 252 WESTERN AUSTRALIAN IAW RENIEW WOL. 20 of urgency in the east.lo3However, as the reality of the Western Australian approach to the United Kingdom Parliament drew near, the Commonwealth was goaded into a rather dramatic response (considered further below), with mass distribution of The Case For Union across Australia and then subsequently, the surprise appearance by Mr Lyons in London, on the eve of argument before the Joint Select Committee on the question of the receivability of the Western Austra- lian Petition.

2.2 The Petition process The secession delegation as lobbyists

Success in the secession referendum brought with it a change in government. Surprisingly, the Collier administration was very loyal to the secession process. Notwithstanding Collier's personal views as to the unwisdom of the whole petition venture, he indicated that he would respect the wishes of the electorate. Accordingly his government introduced the Secession Act of 1934 which provided for the form by which the wishes of the Western Australian electorate would be conveyed to the United Kingdom Parliament and the King.'" It adopted the mechanism of a petition and appointed the four member delegation consisting of committed secessionists to present the petition. The Dominion League held a rousing celebration &r the original referendum victory and had another rousing send-off for the delegation when they set off for London late in 1934. Nevertheless, the Government remained somewhat aloof from this process, and to some degree weakened the credibility of the delegation by not including high level members of the Government in its ranks.lo5If this omission was intended to undermine their efforts, the Government underestimated the fervour with which the delegation would work on its arrival in London, and thus attain a measure of credibility on its own.

103. Although Lyons, in response to the referendum result, took the steps discussed at n 99, he was still fairly arrogant in his positions. For example, the new Grants Commission contained no West Australians. 104. Watt supra n 8,55. 105. Somerville Papers supra n 8 (Clippings file - 24 September 1935). Note however, that Collier's name was on the Petition itself. See also, Colebatch "The Federa- tion Campaign" supra n 48,19. 1990J TWO NATIONS, TWO DESTINIES 253

In London, elegant quarters were provided to the delegation within Savoy House; Sir Hal Colebatch was more than happy to use his position as State Agent-General to further secessionist aims. The delegation then proceeded to make extensive contacts with the London and provincial media. lffi The arrangements were made with Moreing and Lord Aberdeen in respect of the presentation of the Petition; it would be necessary throughout the process to have an advocate in each House of the Parliament. Captain Moreing's interest was natural: he owned Bewick Moreing, a mining company based in Western Austra- lia. Indeed the mining lobby seemed an active supporter of this process, as it was later to be in the 1973 secession activity in the State. The secession delegation was in fact feted in London by the Wiluna Gold Mining Corporation, a Western Australian venture hnded with English capital, and owned by the notorious Perth based promoter, Claude de Bernales, then at the height of his influence. It was even suggested in a mining industry newspaper that the gold mining industry of Western Australia was surreptitiously supporting the secession movement in return for a promise by the secessionists not to impose a gold tax after independence.'@' Certainly, when the accounts of the secession delegation were presented to State Parliament after the failure of the petition process, the committee examining the accounts was puzzled by the fad that &r a year of entertaining for lobbying purposes, the delegation needed to make only modest claims for entertainment expenses. 'OR

106. Some details of their activities are summarised in their Fir.71 Interim Report supra n 7. See also, the Law Journal 29 December 1934 supra n 11 and see the following quote from the Liverpool Post on 19 December 1934: The Delegates are engaging in propaganda on a scale which will be the measure of their disappointment if they fail. (Extracted from the Somerville Papers supra n 8 (Clippings file: 21 December 1934)). 107. Accounts of de Bernales can be found in T Sykes Two Hundred Years of Panic (1988) and Lyall supra n 5. See Watson's Papers supra n 9, Box 2 for the pmgramme of the Wiluna Gold Dinner. De Bernales was instrumental in securing the gold bonus for the State and may have been behind the anti-gold tax initiative as well. See Lyall supra n 5. 108. The accounts are discussed in the Somerville Papers supra n 8 (Clippings file: 24 September 1935, and 5 September 1935).As well, see Colebatch "The Federation Campaign" supra n 48,18, where it is implied that the cost of the Petition process was 50,000 pounds, an enormous sum at the time. 254 WESTERN AUSTRALIAN LAW RGVIEW WOL. 20

It is possible that Walter James, the prominent Western Australian politician and lawyer, could have served as an intermediary between the secession movement and the miling industry. He was referred to in some circles as the intellectual centre of the secession movement, notwithstanding his earlier support for federation at the turn of the centurylm and it is certainly clear from the personal papers of Watson that he was in frequent cable contact with Watson, advising him on the tactics to be pursued in lobbying and in presenting the case to the Joint Select Committee. If such commitments were made, it is also possible that the secession movement had worked out plans for a transitional government should the Petition be successful, and that the League was planning to form a political party and to agitate for a new election once independence was granted. Further investigation into the papers of James might shed some light on these issues. The lobbying activities of the secession delegation extended beyond contacts with journalists and business leaders. They actively lobbied many of the Members of Parliament, held meetings with Mr Thomas, the Dominions Secretary, and took every possible occasion to call public meetings and conduct public discussions. They engaged in an active campaign of letter writing to the papers and embroiled themselves in the public sparring match with Sir Arthur Berriedale Keith over his apparent reversal of position on the possibility of the Petition's reception by Parliament.'lo Intriguing were the contads made by the delegation with the Indian Princes who were in the process of negotiating home rule. Indeed the entire question of the Indian Reform Bill was an active issue before Parliament during the period of the Western Australian secession petition and Watson's papers reflect his substantial interest in that process. The connection between the two issues is emphasised by the correspondence of Keith to the Scotsman extracted above."'

109. See Watt supra n 8,58where Keenan and James were said to be the scholars of the movement. Arguably, Watson could be included in that category. He also added the crucial element of idealist zeal, similar to James's own character in his younger days and a factor that may have helped attract his support. See Lyall supra n 5 for a portrait of James. 110. As discussed above in the text accompanying nn 96,97. 111. Watson's Papers supra n 9 Box 3 contain extensive notes and correspondence on the Indian question. It was remarkable that the Delegation was able to generate attention with such a large issue already on the constitutional slate. 19901 TWO NATIONS. TWO DESTINIES 255

Even more intriguing is the cable between Watson and James indicating that Watson proposed to make contact with Eamon De Valera, and that such a proposal had been previously discussed with James. De Valera by this time had been elected Prime Minister of the Irish Free State and was pursuing a radical pro-independence line which brought him into direct conflict with the Secretary of State for the Dominions. That Watson was interested in such a contact highlighted the radical nature of his nationalism; that the contact had been planned in discussion with other secession authorities reveals that such radical nationalism was not merely a personal peculiarity of Watson, but a feature more widespread in the secession movement. Indeed, some journalists saw the movement in this light, and in fact The Independent published an editorial which compared the Western Aus- tralian secession Petition to the American Declaration of Independ- ence. 112 It is doubtful that Watson actually made such contact with De Valera before the Joint Select Committee adjudicated on the Petition, as the Western Australian secession delegation never during this process betrayed any understanding of the political realities of the Empire such as were possessed by De Valera. The difference between the understandings of the Irish and Western Australian movements is apparent in their outcomes. The Irish succeeded, within two years &r the presentation of the West Australian Petition, in achieving virtual independence, whereas the secessionists, keeping their faith in the ultimate power of the British Parliament, were to be disappointed by its abdication of any responsibility to facilitate Western Australian self- determination, and within two years the secession movement had evaporated. It is possible that after the rejection of the Petition by the Joint Select Committee, Watson made contact with De Valera. It was

112. The Independent 29 December 1934 as quoted in The First Interim Report of the Secession Delegation supra n 7. See also infra n 175. 256 WESTERN AUSTRALIAN LAW RGVIEW [VOL. 20 apparent that he had been further radicalised by the Petition process and by late 1935 was advocating a course for the State that parallelled the Irish strategy.113 However by 1935 it was too late for Watson. His movement had lost public support114and his closest allies did not follow him in his increasingly radical positions. By failing to adopt the Irish tactics earlier, the secessionists had lost their best chance. Had they pursued the Irish line between 1930 and 1933, the result of the movement could well have been very different. Whether such an approach would have been possible is unclear as it seemed essential to the secessionists to be able to give two assurances to the Western Australian population

113. Watson supra n 6. See also the Somenille Papers supra n 8 (Clippings file: West Australian 24 September 19351, which reveals the extent of Watson's radicalism. Firstly, it indicates some sympathy with De Valera: I hold no brief for Mr De Valera but I will say that, if in his dealings with the Dominions Office, Mr De Valera gets one-half of the double dealing we are receiving, then three-quarters of the responsibility for the ... position belween Ireland and Eng- land lies at the door of the Dominions Office. Secondly, Watson was continuing to press for a unilateral declaration of independence, alleging a conspiracy between the British and Australian Governments to frustrate Westralian aims (from the same article): There was a common conspiracy between Mr Lyons and Mr Thomas to side-track the issue ... Eighty members of the House of Commons were taking their political lives in their hands by supporting the secession movement. Our supporters in London are just as keen on taking direct action as anyone in WA. ... [the balance of the quote is in the text accompanying note 2091. Nevertheless, he continued to advocate constitutional means as well and, in November, the DLWA was lobbying legislators to have Canberra present the WA petition to the British Parliament, in order to comply with the constitutional conventions enforced by the Joint Select Committee in its rejection of WA's direct Petition: See Somerville Papers (Clippings file: 16 November 1935). See also infra n 209. 114. When MacCallum Smith sold the Sunday Times in 1935, it immediately dropped the secessionist cause and terminated the editor, Chandler, who had been a pillar of the movement. See Watt supra n 8,81and the Somerville Papers supra n 8 (Clippings file: December 1935 - article on lawsuit between Sunday Times Investments and Chandler over his pension). The Sunday Times, in fad, reacted to the rejection of the Petition by suggesting that the State "accept the umpire's decision". It was by then already in the hands of the new proprietor Victor Courtney: Watt supra n 8,81. This betrays how critical press control was to the building of a mass movement and does much to explain the sudden decline of secessionism after 1935 in the State. 19901 TWO NATIONS, TWO DESTINIES 257 through the early 1930's: a guarantee to continue the White Australia Policy after secession, and more importantly a pledge of unbroken loyalty to the Crown. The strategy of double-revolution (against not only the Federal tie but the Crown as well) that the Irish recognised as necessary to achieving full self-government within the Empire (because of the 1921 treaty, the Irish were not freely associated with the Empire, but were bound by a form of federal tie to Britain, despite the recognition of their Dominion status at the 1926 Imperial Conference) would have required the League to radicalise the population to a much greater degree than its pro-Imperial course required. De Valera accurately assessed the extent of the abdication of British power in the 1930's and in fact seized upon the abdication of King Edward VII himself to proclaim, the next day, the virtual independence of the Irish Free State, by purporting to redefine unilaterally the relationship between Ireland and the Crown. Although this was a revolution against the Irish Free State Treaty and against the Crown, thus securing the independence of the Irish Free State, at the same time the Irish offered to retain a limited form of connection with the Crown which the British resignedly accepted. This residual connection with the Crown was not severed for a further decade.lI5A double-revolution was thus a mechanism that the Western Australians could have used to achieve independence and still ultimately retain a connection with the Empire.

115. The unilateral redefinition of Ireland's relationship with the Crown breached the principles of the Balfour Declaration which reserved the issue of Crown titles to common not unilateral action within the Commonwealth: see supra n 73. See also Dawson supra n 73,454 citing The London Times article of December 12, 1936 on the Irish response to the abdication. See also Wheare infra n 213,289-290.For greater detail on the path to Irish independence see A Clifford The Constitutional History of Eirellreland (Belfast: Athol Books 1987). See especially c 5, p 77,87 and c 7. Ireland broke with the Crown on the abdication, but refixed the tie according to its own liking. It proclaimed a new Constitution in 1937 and seceded from the Commonwealth by proclaiming a Republic in 1948-1949. 258 WESTERN AUSTRALIAN LAW RENEW [VOL. 20

The convening of a joint select committee to consider the receivability of the Petition After the Petition was presented in the joint Houses of Parlia- ment, "6 the Houses rapidly formed the view, more than hkely acting on the direction of Cabinet and upon the advice of the Dominions Secre- tary, that it was necessary to address the preliminary question of whether the Petition was proper to be received. That this response was calculated, there is no doubt, a conclusion apparent from the speed at which the decision was reached. Lord Aberdeen introduced the Petition into the Lords with a short speech: My Lords ... I wish to say only this, that the right of petitioning the Crown and the Parliament for the redress of grievances is acknowledged as a fundamental principle of the Constitution and it is in order to afford the State of Western Australia facilities for availing themselves of thk right that I am presenting this Petition to your Lordships' House."' Immediately thereupon, Lord Hailsham, Secretary of State for War, replied: My Lords, this statement ... seems to me to raise matters of grave constitutional importance, having regard to the relationship between the Dominions and this country which is at present in force. I do not think the position in relation to these questions is free from doubt and I do not; think it is one we can hastily determine. In these circumstances, and before the Petition is actually received, I should be grateful if your Lordships would give me a little opportunity of considering the issues involved and, perhaps, of tendering advice to your lordship^."^ The Public Petitions Committee of the Commons on the next day (18 December 1934) reached a similar conclusion, recommending a Select Committee be appointed to consider the Petition and to report upon the advisability of its reception by the H~use."~

116. The secessionists had wanted to present the Petition at the Bar of each house but found that privilege reserved to the Corporations of London and Dublin: see the First Interim Report of the Secession Delegation supra n 7,6. Hence, they relied on their spokesmen - noted at the outset of the paper. 117. United Kingdom, House of Lords (17 December 1934), Parliamentary Debates, Session 1933-34, vol 95, 424. 118. bid. 119. United Kingdom, House of Commons (18 December 1934) Proceedings of the House of Commons, no 21, 71. Further details as to the appointment of the Joint Select Committee can be found in the Two Reports (First and Final) of the Secession Delegation, Battye Library PR 10563114 and PR 10563115 and in the prologue to the Report of the Joint Select Committee supra n 77. 19901 TWO NATIONS, TWO DESTINIES 259

These developments took the secession delegation by surprise and a rumour circulated that the Petition was to be withdrawn. '" This was quickly denied, but the delegation remained perplexed and annoyed. The reason for their annoyance was that they had taken precautions to avoid this situation. Long before the enactment of the Secession Act 1934 (which adopted the Petition as the secession vehicle), a Secession Committee had been appointed by the Legislative Assembly to consider how to implement the Referendum Mandate and to draR the Case For Secession. At that time, the Committee took the precaution of seeking a legal opinion as to their right of petition and then contacted the Speaker of the British Parliament to confirm the details of the petitioning procedure. They advised the Speaker of the opinion they had received on their right of approach and were given no intimation of disagreement. '21 The delegation completely failed to grasp the political significance of this volte-face. And political it was indeed. After Lord Hailsham's demurrer, a behind-the-scenes consensus emerged that a Joint Select Committee of both Houses should be struck to consider the receivability of the Petition. It emerged in the newspapers that Cabinet itself had approved the terms of reference of this Committee's mandate: namely, to consider the 'propriety' of the reception of the Petiti~n.'~~This introduction of the concept of propriety into the jurisdiction of the Houses to receive petitions was unprecedentedlZ3and reflected the extent of the abdication of British sovereignty after the Statute of Westminster process. The Commonwealth was, by this time, mildly protesting that any such committee was an unwarranted interference in its internal affairs. However, by 2 February 1935, when the composition of the Committee was announced, the Commonwealth had become more deeply concerned about the course of events. Some in the British caucus had

120. The Scotsman 19 December 1934: (See Watson's Papers supra n 8 Box 3 for an extract and his draft response). 121. 'Watson Attacks British Ministry" West Australian 27 July 1935, (extracted in the Somerville Papers supra n 8 (Clippings file). 122. West Australian, 17 January 1935, extracted in the Somerville Papers supra n 8. 123. This was argued by Morgan before the Joint Select Committee. As well, see infra n 164. 260 WESTERN AUSTRALIAN LAW RFVIEW WOL. 20 expressed the view that the British Parliament would merely be attempting to "hold the balance between the contending parties" by considering the Petition.'24 Lord Hailsham himself apparently favoured its reception.lZ5All in all, the developments reflected the headway made by the Delegation between 18 December and 2 February in its propaganda efforts. This panicked the Commonwealth to a degree and they stepped up their resistance efforts. The secessionists were later to claim that the Commonwealth waged a secret propaganda war of its own, in cooperation with the Dominions Secretary, in order to persuade the British Government to derail the Petition.ln Because they did not understand the true ~i~canceof the Balfour Declaration as interpreted by the British, the secessionists took the appointment of a Joint Select Committee of both Houses to consider the receivability of their Petition to be simply a mere formality, a delay rather than a disaster. They remained supremely confident that this minor technical obstacle would be surmounted and that the Houses would have a fkll debate on the merits of the Petition. They seemed to have no mklmg of the possibility that the Joint Select Committee would be used as a process of prior restraint on the Petition to give effect to the constitutional convention, implicit in the Balfour Declaration, that the British had completely abdicated sovereignty in respect of the Dominions. The necessary corollary of this hidden truth was that the secessionists had to wage a battle not to persuade the United Kingdom of their grievous situation, but rather to overcome the will of the Commonwealth Government. Their mechanism of separation had to be not a Petition to the United Kingdom, but a unilateral declaration of independence for which they would have to subsequently seek international and Imperial support. Thus disarmed, the secessionists set out to prepare for the hearing before the Joint Select Committee, which was ultimately set for the end of March 1935. Accordingly they proceeded to retain legal counsel and

124. West Australian 2 February 1935, extracted in the Somerville Papers, supra n 8 (Clippings file). 125. Liverpool Post, 1February 1935, extracted in the Somerville Papers supra n 8 (Clippings file). 126. Sommerville Papers supra n 8 (Clippingsfile): containing extracts from the West Australian, 17 January 1935; 30 January 1935; 1February 1935; 2 February 1935; 24 February 1935; 28 February 1935; and 7 March 1935. See also infra n 160. 127. See eg, supra n 113 on the allegation by Watson of a conspiracy between Whitehall and Canberra to defeat the Petition. 19901 TWO NATIONS, TWO DESTINIES 26 1 to seek legal opinions on their position. The counsel they selected was Professor J H Morgan, KC, Barrister and Professor of Constitutional Law at University College, London, who was to be assisted by Paul Springman, Barrister of the Inner Temple. Morgan's writings had already been used to buttress secessionist arguments during the referendum campaign.I2%d it was Morgan who, in February 1934, had provided the opinion as to the receivability of the petition to the Western Australian Parliamentary sub-committee which prepared the Case For Secession and mapped out the petition process. This opinion was a simple one, resting on three propositions. First, the People of Western Australia as subjects of the British Empire had an ancient right to petition the Imperial Parliament. Second, Parliament had the right to receive any petition for relief which was within its legislative jurisdiction. Third, Parliament had enacted the enabling legislation which created the Australian Constitution, and was therefore the only power with the legal capacity to change that enabling legislation. Parliament, therefore, had legislative jurisdiction in respect of secession, and was entitled to receive the Petition, which the people of Western Australia in turn were entitled to present. The question of receivability was in Morgan's view an open-and-shut case. The Statute of Westminster did nothing to change this position because it had not been adopted by Australia, and because the United Kingdom Parlia- ment in any event retained the sovereign jurisdiction to legislate in a manner inconsistent with that statute.

128. Hartrey supra n 17, 10. 129. Second and Final Report of the Delegation on Behalf of the People of Western Australia (Perth: GPS c 9362, 1936): Battye Library PR 10563115, 4, and see suprann 121and 142. 130. A draf€ of the opinion, undated, is apparently contained in Watson's Papers supra n 9, Box 3. However, this may not be the same opinion, as Morgan also appeared to draft the opinion of the eight Western Australian KCs published later that year. However, it accords with the arguments made by Morgan before the Joint Select Committee and with the secessionists own constitutional positions, which were, after February 1934, based, in large measure, on Morgan's views. Collier, in fad, held the secessionists, who largely composed the sub-committee which recommended the Petition process, responsible for the constitutional implications of the procedure they adopted in reliance on Morgan's view: see Somerville Papers supra n 8 (Clippings file: The West Australian, 1 February 1935). 262 WESTERN AUSTRALIAN LAW RENIEW WOL. 20

In February 1935, two further opinions were procured at the personal expense of the secession delegation, one from Sir William Jowitt KC (who was soon to become the Solicitor-General of the United Kingdom), the other from D R Pritt KC, both eminent constitutional lawyers. '" J!urthermore, eight Western Austrdan King's Counsel were alleged by the secession delegation to have provided a supportive joint opinion in February at no cost, although this opinion was mysteriously not made public until April 1935, by which time the matter was already subjudice,'"" curiosity considered below. Jowitt's opinion was to the same effect as Morgan's, but dealt more explicitly with the interaction between legal and constitutional principles. His opinion, issued from the Temple on 26 February 1935, was addressed to two questions: the receivability of the Petition, and the effect of the Statute of Westmin- ster, if adopted by the Commonwealth. He concluded that the Petition was receivable but made the following comments on the possibility of Imperial legislation to permit secession: I have but little doubt that as a matter of constitutional practice as opposed to legal theory, any such act would be passed by the Imperial Parliament at the behest of the Commonwealth Parliament. Equally as a matter of constitutional practice, it would be most unlikely that the Imperial Parliament would aRer the adoption of the Statute of Westminster by the Commonwealth Parliament pass any such act without the consent of the Commonwealth Parliament. To do so would be to ignore the provisions of section four of the statute. As a matter of legal theory however,it is I think right to say the following:

(i) that the Imperial Parliament remains supreme as must be the case in an unwritten constitution;

(ii) that the Imperial Parliament may at any time disregard the restrictions it has placed upon its own liberty of action; thus it could theoretically repeal the Statute of Westminster or disregard section 4 thereof;

(iii) that in any event, whether the Commonwealth Parliament have or have not adopted the statute, whether they "request and consent" or whether they do not, the machinery necessary to secure an alteration to the covering sections of the Commonwealth Constitution is the passage of an Act of the Imperial Parliament.

131. Final Report on the Secession Delegation supra n 129,4. Pritt's opinion has not been located. It may be that the delegation had private help in paying for these opinions. De Bernales of Wiluna Gold Corporation, which had just feted the delegation, is one possible source. 132. bid, 4, and infra n 187,190 and accompanying text. TWO NATIONS, TWO DESTINIES

From this it follows that, in my view, the right to present the petition to the Imperial Parliament exists today and will continue to exist unless and until the Imperial Parliament otherwise resolves.'33 Neither Morgan's nor Jowitt's opinion was formally published by the secession delegation.134 However, the delegation made statements to the English and West Australian press that they had received opinions from eminent King's Counsel to the effect that there was no impediment to the legal success of the secession Petition, that it was fully receivable, and that its prayer for relief could be granted by the United Kingdom Parliament.lS Their press statements made no reference to the negative asp& of Jowitt's opinion. They did not appear to appreciate the significance of his comments on constitutional convention~,'~~which indicated the extent to which the United Kingdom Parliament had become, in the famous words of Mr Justice Rand, a "bare legislative trustee".137In short, they misapprehended the si@- cance of the abdication of Imperial sovereignty by the British. Jowitt was to provide further elaboration of his views to Parliament on the occasion of the request by the Canadian Federal Parliament to pass an amendment to the Canadian Constitution &r the rejection by the Privy Council, of the federal claim to exercise power over unemployment insurance, in the Labour Conventions case of 1937. At that time, Jowitt, then Solicitor-General,was asked in Parliament about the necessity for considering the position of the provinces on the request made by the Parliament of the Dominion of Canada, and had the following to say in response: One might think that the Canadian Parliament was in some ways subservient to ours, which is not the fad. The true position is that at the request of Canada,

133. A copy of the opinion can be found in the Battye Library Archives 240A. 134. As noted, however, the Joint Opinion of the eight WA KCs published in May 1935 represented, in substance, Morgan's views. 135. See, for example, the speech by Sir Hal Colebatch to the British Empire Club, on 21 March 1935, made just before the hearings before the Joint Select Committee were to open: Battye Library Archives 240A. The reference to Counsels opinions is at page 45. For a summary of the speech, see the Somerville Papers, (Clippings file: 21 March 1935). 136. See the interview with MacCallum-Smith on his return from London after the failure of the Petition: Battye Library PR 10563110. He alleges the secessionists were 'Sockeyed out of our right by so-called 'Constitutional Conventions', a term invented to pull the wool over the eyes of the people". 137. Quoted in the Patriation Reference supra n 25,41. 138. Attorney-General for Canada v Attorney-General for Ontario [I9371 AC 326. 264 WESTERN AUSTRALIAN LAW REVIEW IVOL. 20

this old machinery still survives until something better is thought of, but we square the legal with the constitutional position by passing these Acts only in the form that the Canadian Parliament requires and at the request of the Canadian Parliament.

My justification to the House for this Bill - and it is important to observe this - is not on the merits of the proposal, which is a matter for the Canadian Parliament; if we were to embark upon that, we might trespass on what I conceive to be the constitutional position. The sole justification for this enactment is that we are doing in this way what the Parliament of Canada desires to do ... I do not know what the view of the Provincial Parliaments is. I know however that when the matter was before the Privy Council some of the Provincial Parliaments supported the Dominion Parliament. It is a sufficientjustification for the Bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and that we must operate the old machinery which has bwn left over at their request in accordance with their wishes. In other words, the United Kingdom Parliament was simply a vehicle for the expression of Canadian sovereignty, and Canadian sovereignty was to be expressed through the Dominion Parliament. The first part of this proposition reflects the abdication of the United Kingdom's sovereignty. The second part of the proposition is more controversial and was in fact rejected by the Joint Select Committee in its judgment on the Western Australian Petition. That decision expressed the duty of the Imperial Parliament to ensure that a request for legislation made by any constituent jurisdiction of a federation, including a Dominion Parliament, is (i) a true expression of popular sovereignty; and that it is (ii) expressed through the proper institutional mechanisms. The Joint Select Committee's reasoning will be examined further below. It is sufficient here to note the ironical intertwining of the West Australian and Canadian experiences. The irony of the first order is simply that the secessionists relied on the opinion of a counsel who fundamentally disagreed with their position. Yet, while the Joint Select Committee rejected the Petition, it did not do so on the narrow grounds sketched out by Jowitt. In fact, it articulated an organic definition of sovereignty similar to that advanced in the secession Petition itself. lrn

139. Quoted in the Patrialion Reference supra note 25,31. 140. See the Petition para 17(xix), which is quoted in full in the text accompanying n 179. The Petition is set out in full in one of the Annexurcs to the Report of the Jo~nlSelect Committee supra n 77. 19901 TWO NATIONS, TWO DESTINIES 265

In the Canadian patriation process, this organic theory was advanced by the Foreign and Commonwealth Office as a justification for the British Parliament to intervene to defend provincial sovereignty, and the Supreme Court of Canada, in the Patriation Reference, expressly rejected Jowitt's narrow views as to provincial rights in a federation14' and concluded that provincial sovereign rights could not be ignored by the Canadian, and thus the British, Parliaments. The West Australians' loss of the States' rights battle in 1935 paved the way for the Canadian States' rights victory of 1981 and Sir William Jowitt was implicated in both confrontations.

The Case For Secession The secession case was prepared pursuant to a resolution of the State Parliament passed after the referendum in 1933,14' under the direction of J L Walker KC, Crown Solicitor and Bacon Scholar in Constitutional and Legal History, of Gray's Inn, London. Under him were a panel of participants, the most active of those being, once again, Watson. The drafting of the Case was in large measure his work, and the favourable impression it leR in London the mark of his dedication and rhetorical flair. The structure of the Case For Secession simply reflected the as- sumptions of the secessionists as to the basis on which the United Kingdom jurisdiction would be exercised. They endeavoured to set out

141. Supra n 25,31. Jowitt's views were set out in the case in order to be refuted. 142. The precise procedure was as follows. After the referendum of 8 April 1933, the Joint Houses of Parliament passed a resolution to constitute a Co-i.:mittee to prepare an address to His Majesty praying for secession. A Committee was struck and, on 19 September 1933, it reported, recommending that a sub-committee chaired by the Crown Solicitor be appointed to prepare a Petition and a supporting Case for Secession. On 21 September 1933, the Legislative Assembly accepted the recommendation and struck the committee, chaired by Walker and which also included Watson. The formal appointment took place by the Lieutenant Governor on 13 October 1933. The Committee then drafted the Petition, made enquiries of the British speaker as to procedural requirements and prepared the lengthy Case For Seces- sion. The Petition, the Case and the Committee's recommendation that a delegation be appointed to present the Petition and the Case in London were submitted to the Legislative Assembly for Approval. The WA Legislature gave all three their imprimatur through the (WA) Secession Act (No 2) 1934, which provided the statutory warrant for the activities of the Secession Delegation in London. See the Case For Secession supra n 9 foreword and the Final Report of the Secession Delegation supra n 129. 266 WESTERN AUSTRALIAN IAW REVIEW [VOL. 20

a case of extraordinary necessity and unfairness, which was in part justified by a theory of a breach of the constitutional contract by the Commonwealth, and in part by the coercion leading to federation itself. Thus in 489 pages, the Committee proceeded to set out a comprehen- sive documentation of the State's grievance^.'^^ It discussed the State's historical and political development, its economic situation, the oppres- sive circumstances under which it entered federation, the background of the secession movement, and the viability of the state as an independent entity. As an additional marketing feature, the advantages to England and Empire of free trade and free migration to an otherwise protectionist continent were stressed. Most of the discussion was devoted to two questions: the inequi- table operation of the Commonwealth Constitution, and the economic disabilities inflicted on the State thereby. Much of the documentation attempted to present the extreme economic necessity forced on the State as a result of Commonwealth tariff policy. Australia consisted in two economic units: an eastern half with a penchant for protected industry, and a western half with a penchant for unprotected ones. Thus Canberra's high tarriff wall sacrificed the West to the East. The constitutional branch of the complaint was directed at the violation of the principle of equality of treatment in section 99 of the Constitution and the unconstitutional centralisation of power achieved by the Commonwealth through the misinterpretation of the Constitution by the High Court. Indeed, the Engineers Case had become to the secessionists what Dred Scott was to the Unionists of 1860.'" The thrust of the Case was to demonstrate that Western Australia never agreed to Federation, that it entered on unequal footing with the other states, and that the operation of the central government exacer- bated that inequality, partly owing to the natural operation of the Constitution, and partly through the perversion of that Constitution by the central government in breach of the fundamental contract. In

143. Watt supra n 8 provides a more detailed summary of the argument and structure of the Case. 144. In Dred Scott u Sandford 60 US 393 (18571, Justice Taney decided that Southern slavery was legal and implied that it was a property right which could legally be introduced into the Northern States. The Republicans under Lincoln took the view that the Court's decision violated the Constitution, and indicated that they would refuse to implement it. The Southern States began to secede in consequence upon Lincoln's election. See Hyman and Wiecek supra n 85, 172-255. 19901 TWO NATIONS, TWO DESTINIES 267 consequence the State was cast into a situation of dire economic necessity, primarily through the operation of Commonwealth financial policy, and crushed into a situation of permanent dependence. The Case claimed that, as a result of the Australian constitutional arrangements, the State lacked the capacity to ever extract itself from its subordinate and miserable condition. By painting a picture of an emergency in order to justify Imperial intervention, the Case accorded with the formula originally suggested by Berriedale Keith to the secessionists in 1931. The breach of the constitutional contract argument was the secessionists' own contribution, derived in part from the theories of the American secessionist^.'^^ This latter doctrine is not without an historical pedigree, as the quote from Camden st the outset of this paper implies, and it has, in fact, received subsequent judicial endorsement. In the case of Madzirn- buto v Lardner - BurheI4 ("the Rhodesian casen),Lord Reid speculated on the possibility that a breach of constitutional principles by a member of the British Commonwealth might justify a breach of the Imperial Constitutional conventions by the United Kingdom Parliament. This notion, put forward in the context of the Rhodesian unilateral declaration of independence in 1965 and the attempt by the Imperial Parlia- ment to legislate for Southern Rhodesia thereafter, was, however, little more than hypothetical musing. Lord Reid noted that, the Imperial Parliament having aded, the only question was whether they had the legal power so to act; questions of convention were rendered moot if raised expost facto. In other words, the Imperial Parliament, having apparently reached a conclusion that it did not abdicate sovereignty in resped of Southern Rhodesia, exercised that sovereignty and precluded the possibility of any conventional questions from being raised. As is apparent from the Western Australian Petition and the Canahan Pa- triation Reference decision, constitutional conventions can restrain parliamentary action, but only in advance. '47

145. However, the right to secede on either the Calhounian state sovereignty theory, or the related breach of the Constitution theory, was rejected in the United States after the Civil War in Texas u White 74 US 700 (1869) where the phrase "indestructible Union, composed of indestructible States" was coined by Justice Chase. This was the foundation of Garran's assertion - supra n 86 - that there existed judicial authority for the proposition that secession was illegal. 146. 119691 1 AC 465. 147. Infra, text accompanying note 175. 268 WESTERN AUSTRALIAN LAW REVIEW WOL. 20

It is also interesting to note the circumstances in which this position was taken. The basis on which the United Kingdom Parliament acted in the Rhodesian case was in part a reflection of the fad that the actions of the Smith Government in Rhodesia were not the actions of the popular sovereign. It was for that reason the Imperial Parliament could purport to act as the agency of the unrepresented portion of the sovereign populace in Rhodesia.la In other words, it was willing to transcend the convention of non-intervention in support of the more fundamental British principle of self-determination- the cornerstone of British liberty. The Union during the Civil War offered a similar justification for its aggression against the South. Likewise in the case of Adegbenm v Akintola,'" the Privy Council noted that in considering whether a Government has a mandate, a vice-regent may be entitled to look behind the voting patterns in the legislative assembly in order to ensure that they, in fact, correspond with popular will. In short, the Privy Council, on at least two occasions since 1935, has confied the right of the Imperial Government to intervene in the internal affairs of subordinate but self-governing communities where the exercise of sovereign powers by their formal institutions do not in fact reflect popular will. It was to this jurisdiction that the Western Australian Petition was addressed. The essence of the Cme For Secession was that the exercise of sovereignty by the Commonwealth Parliament did not reflect the popular will of Western Australia. This is the deeper si&icance of the breach of the constitutional contract asserted by the secessionists. Thus, the Petition claimed that in the British political tradition, the formal organs of sovereignty in a state or nation are always the bare legislative trustees of popular sovereignty. Hence institutional behav- iour which contradicted the popular will thus breached the Constitution and legitimated the right of revolution. This does not mean that

148. In fad, the British attempted similar actions in relation to South Africa, leading to the Ndlwana case supra n 28 in 1937. In that case, the South African court denied British competence to do so, concluding that the Statute of Westminster, 1931, had conferred independence on South Africa and that "Freedom once conferred cannot be revoked". The difference between the Rhodesian and South African situation is simply where the decision was made. In the Rhodesian case, a British Court was considering an action of the British Parliament which it was bound to recognise. In Ndlwana, a South African Court was examining British legislation. It proclaimed the new South African grundnorm and announced that the British Parliament no longer spoke for South Africa. 149. [I9631 AC 614. 19901 TWO NATIONS, TWO DESTINIES 269

sovereignty is transient public opinion. Political science offers a more sophisticated vision of the concept. Lord Durham recognised that public sentiment must be structured in its expression and that self- government requires popular maturity and civil temperance. These qualities similarly distinguished the French and American Revolutions in Burke's eyes. Rather, the point made by the West Australians in 1934, and which remains valid today, is that the Diceyan notion of Parliamentary Sovereignty is primarily a political not a legal concept. Unfortunately, however, it has more frequently than not been treated as a rule of law and applied in circumstances where it is an inadequate description of political fads. The persistent absurdities of British constitutional law suggest that Dicey's marriage of law and politics needs to be radically updated. The shibboleth of Parliamentary sovereignty has cowed the judiciary, particularly in Australia, to the extent that it has failed to recognise that, on occasion, Parliamentary despotism can oppress the popular will. Since the fall of the First Empire, British constitutional law has struggled towards a reconciliation of the black letter law assertion that sovereignty is an attribute of an institution, namely Parliament, with the position in political theory - that sovereignty resides in the people not their institutions. Such a reconciliation is the only basis upon which British law could possibly be consistent with its grundnorm that Parliament is the ultimate expression of the free will of the British people. Still, it is a rare judge who will admit that Parlia- mentary decrees and enlightened popular will do not always coincide. It is a rarer case still where the judiciary stand with the people against the Parliament.'" The decision of the Joint Select Committee on the

150. The situation of South African judges who mechanically enforce decrees which they believe to wrongly oppress the majority of the country's inhabitants comes to mind. Another example of the absurd legality of the doctrine of Parliamentary sovereignty as it relates to Australia is the (Cth and UK) Australia Act 1986. Rather than simply asserting sovereignty in the fashion of the South Africans in Ndlwana supra n 28 and n 148, a sovereignty already conceded to Australia by 1935 in the Report of the Joint Select Committee supra n 77,Australia treated Parliamentary sovereignty as a rule of law not a fact of politics and asked the British Parliament, elected by people ten thousand miles away, to go through the charade of making cosmetic declarations of Australian popular sovereignty. And even aRer that, many legal commentators still treat the Australian grundnom as a British Statute, rather than as the political fad that the continent is peopled by those who collectively seek to govern themselves and who operate their existing political institutions accordingly. For further comment on this point, see the Conclusion, infra, Part 111. 270 WESTERN AUSTRALIAN LAW RFVIEW [VOL. 20

Western Australian petition in 1935 adopted the position in theory that popular will and Parliamentary fiat are not always coincident, although owing to the general political weakness of the British spirit in the 1930's, it violated the concept in practice. The decision in the Canadian Patriation Reference attempted, with partial success, to put the theory into practice.

The reaction of the Commonwealth to the Secession Case and the Petition movement By early 1934, the economic depression was still crushing the spirits of Australians in the smaller states. Secessionist sentiment was not confined to Western Australia. Tasmania and South Australia threatened action similar to the Western Australian Petition if steps were not taken to address their financial position.I5l This domestic nationalism parallelled the growth of rampant nationalism on a global scale, and seeing the implications of nationalism at large, the Common- wealth rapidly came to see the seriousness of the domestic situation. At this point, they were concerned not so much with the Petition of Western Australia itself, but with the effects of the prolonged aliena- tion of the smaller states on the ability of the Commonwealth to continue to govern. After having initially taken the position that the Commonwealth would not formally support or oppose the Western Australian petition movement,152the central government hastily sprang into action and prepared a response to the Case For Secession. The Case For Unionla was prepared under the directorship of a four man committee, led by Sir Robert Garran, with the ample assistance of the Commonwealth Civil Service. There were two Western Australian members of the committee. William Somerville was a member of the Arbitration Court who had been active in the opposition to the secession referendum. The Federal League chairman and journalist, D J Gilbert, was the other token sandgroper. Gilbert, had been an active pamphleteer during the

151. Supra n 14. 152. Senator Pearce is quoted as saying this on 31 May 1934, in Watt supra n 8, 74, although he could not explain why a Committee had been struck to prepare The Case For Union, except to say that the Government "would take any action necessary to preserve the Australian Commonwealth". 153. Supra n 40. 19901 TWO NATIONS, TWO DESTINIES 271 lead-up to the secession referendum and Somerville had been adive in correspondence with the papers during that time. Somerville collected a substantial Gle on the secession issue which was invaluable to Garran in the preparation of The Case For Union.'" The Case for Union had a dual object. It served first as a reply to the secession case which could be presented to the Imperial Parliament, but it also served as a mechanism to re-capture the hearts and minds of not only Western Australians but of electors in the other small states. That this was an objective is apparent from the fad that one copy of the case was printed for each of the eledors of Western Australia, Tasma- nia and South Australia (over 750,000 copies were printed) at the then enormous cost of £15,000, an expenditure incurred without any legislative warrant.'% The btobjective may have reflected advice that the Commonwealth was receiving, perhaps from Garran himself, that the United Kingdom Parliament might in fad have a residual jurisdiction to grant the Petition request where the circumstances presented by Western Australia were sufficiently extreme. The second surely speaks to the reality of the earlier suggestion that the Depression seriously threatened to redraw the map of the Australian continent. Canberra's

154. The cover page of The Case For Union offers some details as to the composition of the Committee. The Somerville Papers supra n 8 provide further detalls as to this and the other matters in the paragraph. See, in particular, the Clippings file for May 1934, for articles on the constitution of the Committee. The file for June and July 1934 contains the exchanges with Sir Robert Garran. 'rhese make it clear that Canberra was running the show, although Somerville was a useful source of information. They also reveal that Collier lent his tacit support to the project, keeping Somerville on the State payroll as the case was prepared, telling him that "he hoped I (Sommerville) would put up a good report", and giving him complete liberty to communicate with Melbourne (see Clippings file for 23 May 1934). Somerville was frustrated with his role. He attacked Colebatch as a conservative who abused his role as State representative but this was censored by the secessionist press. He lamented his exclusion from the Canberra inner circle in the drafting of the Case. He spent a considerable period of time preparing a speech to be broadcast nationwide on ABC radio but it was ultimately cancelled because, by the time it was scheduled, the matter was sub judice before the Joint Select Committee. See the Somerville Papers: (Clippings file: especially 2 April 1935 and the Draft Speech Notes). 155. In Lyons' introduction to the case, he states the dual objective supra n 4, Foreword. The statistics are cited in Watt supra n 8,62, 75. See also Craven supra n 35, c 3. 272 WESTERN AUSTRALIAN LAW RGVIEW IVOL. 20

profligate reaction, during a period of severe spending restraints, testified to its fears. The Case For Unwn dealt with many of the same issues as the Case For Secession but in much less detail. Some of its more salient arguments included the following. First it noted that there had been a general transformation in the nature of empires after World War One, and that with the collapse of the League of Nations and the rising tide of nationalism, the "international outlook is once more shadowed with forebodings".'" In consequence, it argued that national unity was imperative from a defence point of view. Secondly it argued that the world economic situation required a national response to crisis; the simplistic secessionist notion of free trade was said to be a policy anachronism. In other words it highlighted the two critical conditions conducive to the development of secessionist sentiment and attempted to turn them to advantage. It then proceeded through a series of legal and constitutional arguments to justify the assumption of a strong central role by the Commonwealth and to argue that Western Austraha had benefitted from that process; it would be a net loser in economic terms by secession. The poem "For God Has Made Her One71157 introduced a sentimental appeal to Australian nationalism into the mix. l'he notion that Western Australia was pushed and cajoled into Federa- tion was dismissed. And, finally, the Commonwealth's case had the advantage of Prime Minister Lyons' signature on the front, whereas the Case For Secession had no corresponding endorsement from Premier Collier. For good measure, The Case For Union added a few closing words which were interpreted by many as a veiled threat. It claimed not to comment on the constitutional propriety of the Western Australian action in presenting a petition to Westminster, but noted: ... We can comment upon the extreme seriousness of a first step which, if it led onto the goal in view, would mean the partition of a Continent and the dismemberment of a Nation. No more serious action on the part of a community, short of armed attack, is imaginable, and we find it diff~cultto believe that its full seriousness has been appreciated by those responsible for the seccssion- ist agitation. That the movement has proceeded thus far without provocative incidents and with no more acerbity than customary attends an ordinary

156. The Case For Union supra n 40,lO. 157. Ibid, 75, 86. TWO NATIONS, TWO DESTINIES

political discussion, is fortunate; but this should not blind us to the potential gravity of the procedure. ... Secession would not only weaken Western Austra- lia but by placing a third ofthe continent outside the Commonwealth, it would weaken Australia. Other very important considerations apart, it is vain to imagine that the Commonwealth could view such a contingency with compla- cency.

Secession, then, is not a question for Western Australia only, and this is the paramount fact which needs to be kept in mind by readers of the Case for Secession and of this Reply. "What shall we say of them who, being in the Commonwealth, feeling a sore greevous unto them, and easie to be amended, sought not the remedie, but have increased the g~-iefe?'"~~ These words seem to have influend some of the conclusions of the Joint Select Committee. They were in fad played upon by the Counsel to the Commonwealth in the course of argument. The Lyons' government had more in common with Churchill than with Secretary of State Thomas, and was able to use words that parallelled those used more recently by the Soviet Union in the Lithuanian context. WeThe Case For Unwn was being draffed, the Commonwealth received further support in the form of the opinions of Professor Beasley of the University of Western Australia. He appeared to be politically committed to Federation, but in any event on the constitutional point was of the opinion that the Petition was a useless exerci~e.'~~ Notwithstanding such assurances, the Commonwealth Government appeared to retain some anxiety. Just before the decision by the British Parliament to appoint the Joint Select Committee to consider the question of receivability, the Commonwealth retained Counsel, namely Wilfred Greene KC, at the then very significant expense of one thousand pounds to argue the case before the Joint Select Committee, with the assistance of Mr N Foster, Banister. Coward Chance were also retained as solicitors. That the Commonwealth was able to take these steps before the appointment of the Committee was publically an-

158. Ibid, 86. 159. Beasley's opinion was published in the West Australian 20 June 1934 and circulated thereafter to all members of the British Parliament by the Australian Unity League, which then disbanded: see West Australian, 26 June 1934, extraded in the Somerville Papers supra n 8 (Clippings file); Watt supra n 8,60-61; and see supra, text accompanying note 102. The thrust of Beasley's opinion was that the consent of all States was required by the reference to indissolubility in the Preamble to the covering clauses and that the Imperial Parliament could not act unless the Australian people as a whole agree. The Joint Select Committee adopted exactly this position in its decision. 274 WESTERN AUSTRALIAN LAW REVIEW IVOL. 20 nounced suggests that it may have been secretly liaising with the British Cabinet, likely with a view to defusing what was, for both parties, an awkward problem. Prime Minister Lyons continued to affect a laconic view of the Petition movement in public nonetheless. 161 The argument was scheduled to start before the Joint Select Committee on 27 March 1935.

160. The evolution of Commonwealth concern over the period from March 1933 to March 1935 is remarkable. Lyons, as noted, was taken aback by the extent of anti- federal sentiment expressed during his appearance in the State in the course of the Referendum Campaign. He responded with an offer of a Constitutional Conven- tion and the setting up of the Federal Grants Commission. But both of these initiatives were done in arrogance. The Convention was abandoned in early 1934 when Lyons indicated he would not necessarily abide by its recommendations; the Grants Commission was almost a deliberate provocation, its membership containing no West Australians. Even The Case For Union was initially an attempt to combat political disaffec- tion in the smaller States rather than to meet the legal threat of the Petition exercise. It's condescending tone betrayed no sense of urgency (although its final threat and the circumstances of its distribution later in 1934 show that the Com- monwealth became increasingly concerned as the year progressed). However, once the Petition was presented, Commonwealth attitudes began to change rapidly. It became apparent that the secessionists were making headway in London. The Somerville Papers supra n 8 (clippings file 17 December 1934 to April 1935) make this clear. The 30 January 1935 issue of the West Australian revealed that the Commonwealth had expected the Petition to be rejected outright. The appointment of a Joint Select Committee took them by surprise. They reacted by claiming that any proposed intervention by the Imperial Par- liament would be regarded as interference in Australian domestic affairs (17 January and 30 January 1935). By 30 January 1935, they had suddenly retained counsel and an article of 1 February 1935 noted Canberra's alarm was growing and that Attorney-General Menzies would be despatched to London to combat the secessionists. At that point, Canberra's "hopes that the British Government would pass the question back for internal decision ... [had] disappeared". By 24 February 1935, the Commonwealth proclaimed the Petition to be unconstitutional and it was already preparing to have secret talks with the British Government. On 2 March 1935, on the eve of the hearing before the Joint Seled Committee, Lyons raised the political stakes by announcing it would boycott any Im~erialenauiw into the Petition if the Joint Select Committee decided it was receivable. (see >so the West Australian clipping, 24 March 1935). An Imperial crisis was threatened, which Lyons tried to mitigate by simultaneously offering to re-establish the long dormant Interstate Commission to consider the realign- ment of FederalJState relations (see West Australian clipping, 24 February 1935). 161. Lyons arrived in London just before the Joint Seled Committee hearings opened. He denied that his visit related to "the proposed dismemberment of Australia" and tried to ignore the secession issue in a conference with journalists on his arrival: Somerville Papers supra n 8 (Clippings file: West Australian 22 and 23 March 1935). 19901 TWO NATIONS, TWO DESTINIES 275

Lyons denied any connection, but by sudden coincidence, he found an occasion to be in London as of 18 March 1935, accompanied by his Attorney-General, Robert Menzies. la A flippant comment on secession was made by Lyons at a press conference upon his arrival in London. He and Menzies then hurried off to secret meetings with colonial officers, and then Wilfred Greene, to discuss strategy in connection with the argument on the Petiti~n.'~ A loss on the question of receivability would have put both the Lyons and British governments in an extremely difficult position at a time when other difficult nationalist questions were before the British Parliament. It is extremely unlikely that the two governments were not operating in close co-operation throughout this process; indeed, the secessionists were later to allege a conspira~y'~.It would be of great interest to inspect the inter-governmental correspondence in this re- erd. By 31 January 1935, the secessionists themselves were gradually becoming concerned that politics might overshadow the legalities of the Petition. Accordingly, they sought and obtained a meeting with Lord Hailsham, at which he promised that the Houses of Parliament would be at liberty to accept or reject the Joint Select Committee's report. Hailsham affirmed this by a statement in the House of Lords

162. Watson alleged in the West Australian 24 September 1935, that Lyons arranged to be in London to fight the Petition. And the West Australian 17 January 1935 claimed that Lyons accelerated his visit to London (where he was scheduled to attend a meat conference) in order to combat the secessionists. It is not without significance that he remained in London until the report of the Joint Select Committee issued: Somerville Papers supra n 8 (Clippings file - March to June, 1935. 163. West Australian 23 March 1935 extracted in the Somerville Papers supra n 8 (Clippings file). 164. Watson, West Australian 24 September 1935 supra n 113, and see also a July, 1935 Sunday Times interview with MacCallum-Smith, Battye Library PR 105631 10. See also West Australian 24 February 1935 noting that the then Attorney- General Lyons planned to discuss the secession issue with the British Govern- ment upon his arrival in London. As late as 18 May 1935, Lyons was still trying to influence affairs by asking Lord Hailsham to convey to the British Cabinet information as to the size of British trade with Australia: West Australian 18 May 1935. All of the foregoing articles are extracted in the Somerville Papers (Clip- pings file). As well, the appointment of the Joint Select Committee was "unprece- dented", (Watson's Papers supra n 6 Box 3,31 January 19351, which suggests that it had a political motivation. 2 76 WESTERN AUSTRALIAN LAW RGVIEW [VOL. 20

when announcing the Joint Select Committee's app~intment.'~~This turned out to be an empty commitment for, as noted below, party discipline was enforced on the issue and no debate on the Report of the Committee was ever to ensue. lM

The hearing before the Joint Select Committee

There does not exist any part of the British Empire, any person or body of persons, executive, legislative or judicial, which can pronounce void any enactment passed by the British Parliament on the ground of such enactment being opposed to the Constitution, or on any ground whatsoever, except, of course, its being repealed by Parliament.I6' The report of the Joint Select Committee of the House of Lords and the House of Commons appointed to consider the Petition of the State of Western Australia appears in the House of Commons Parliamentary Papers for 1935'@and contains the terms of reference for the committee of both Houses, the Report of the Joint Select Committee, the Petition of the State of Western Australia, and complete minutes of the speeches delivered by Counsel. It is a document of unrecognised importance in Western Australian constitutional history and in the constitutional history of British Dominions generally.16"t is a document which, on the one-hundredth anniversary of the attainment of self-government by the State, is worthy of a wider recognition. The centenary of self-government would be an appropriate occasion to recognise the attempt to recapture that lost sovereignty, and it might well be worthwhile to see the republication of the report through one of the oficial organs of law reporting in this State. The Joint Select Committee itself was an amalgam of six persons, seleded with a view to ensuring that it would possess expertise in both the legal and political dimensions of the Imperial Constitution. There was generally no trouble in getting members to participate in either

165. Final Report of the Secession Delegation supra n 129,4. 166. West Australian 24 September 1935 extraded in the Somenille Papers supra n 8 (Clippings file). 167. A V Dicey The Law of the Constitution 8th edn (London: MacMillan, 1915)86- 87. This is one way of defining the British grundnorm. 168. Supra n 77. 169. With perhaps the exception of Finnis' article supra n 26 and the Foreign and Commonwealth Office opinion of 11 November 1980, supra n 26. 170. Supra n 22. 19901 TWO NATIONS, TWO DESTINIES 277

capacity; the subject was of great interest to the Parliament and to educated circles in London generally, although it was overshadowed by the threatening Irish, Indian and South African troubles. The key person on the Committee was Lord Wright, the eminent Law Lord. Lord Wright dominated the proceedings, with the Committee effectively allowing the argument to take place before him alone. The arguments of Counsel are reviewed in a few places"' and a summary was published in the Australian Law Journal in 1935."2 It is sufficient for present purposes to briefly note the thrust of the positions on each side. The hearing proceeded in a small chamber with few people in attendance other than the press, Watson and Menzies (to instruct counsel), and a few others watching on as observers. The oral argument was very lengthy for what was in essence a motion for summary judgment. It was conducted over a period of four days spread across four weeks commencing on 27 March 1935 and terminating on 17 April 1935. Morgan KC, including his reply, used up approximately three of the days, much of it spent in rhetorical flight, and Wilfred Greene KC, more sober in his address, no more than one. The stakes were high; tempers flared between counsel on the third day.173Sabres rattled on the fourth as both counsel warned the Committee of the political consequences attendant upon the rejection of the demands of their respective clients. The mandate of the Joint Select Committee was to consider whether the Petition was "proper" to be received, which the Committee interpreted as meaning whether as a matter of law and convention, or in other words whether as a matter of constitutional law and principle, it was appropriate to receive the Petition.li4 The Committee was therefore

171. See Watt supra n 8; Craven supra n 35, c 3; Finnis supra n 26. 172. E Russell 'Western Australian Secession Petition -Arguments Before the Joint Select Committee" (1935) 9 AU 141. Ms Russell accompanied the secession delegation to London and was present at the hearings: see F~nalReport of the Secession Delegation supra n 129. 173. All of the following material is extracted from the Report supra n 77 except where otherwise indicated. On the sabre-rattling by counsel, see infra n 183-185. 174. This was actually unclear. The terms of reference of the Lords asked whether the Petition was "proper" to be received; the Commons whether it was "advisable". The Joint Select Committee would offer no interpretation of its mandate at the outset of the hearing, but Morgan took the mandate to be the ascertainment of the constitutional propriety of reception. The decision of the Committee ultimately adopted that interpretation. See also supra n 117-123, 164. 278 WESTERN AUSTRALIAN IAW RENIEW WOL. 20

required to adjudicate not only on questions of law, but also on questions of convention, in a manner similar to that requested of the Supreme Court of Canada in the Patriation Reference in 1981. The similarities in fad between those two processes are remarkable. In both cases, there had been a request for legislation by a single member of a federation. In both cases, the United Kingdom Parliament had the legal power to grant the request, and in both cases the legitimacy of the standing of the party to make the request was rejected as incompatible with the meaning of sovereignty in a federal state. More- over both situations belie the principle enunciated by Dicey set out above. While neither of the Western Australian secession Petition nor the Canadian Patriation Reference led to a declaration that an existing statute of the United Kingdom Parliament was void, both illustrated that a legal mechanism exists to get a prospective determination from a specially constituted court that a proposed statute if passed would be constitutionally void. As a practical matter, this prevented legislation from being enacted. While the Parliament in both circumstances retained, after the prospective declarations, the theoretical power to ad, such action would have been revolutionary and would have been no different in character than if the highest judicial authority in the land had retrospectively declared a parliamentary statute to be legally void. In both cases, the restraint on such actions is not legal but ultimately only conventional. When Morgan KC opened the arguments before the Committee, he was directed not to address the merits of the Western Australian Petition, but solely the preliminary constitutional question. Still, much of his argument was devoted to presenting the merits. The nature of

175. There is nothingbut convention to stop judicial rebellions against the legislature. Even if the legislature purports to overrule the decision, this may simply produce a further judicial rebellion. Note also that this implies that Dicey's definition of the British grundnom (supra n 167) is conventional, not legal, and is thus subject to contradiction by, or accommodation with, other conventional constitutional principles. This in turn implies that conventional principles of, eg, civil liberty can be invoked as justifications not to enforce statutes. Or, stated more broadly, parliamentary sovereignty as a legal principle is not only inconsistent with political science; it is a logical fallacy. 176. The secessionists were later to complain bitterly about not being heard on the merits: supra n 164. 19901 TWO NATIONS, TWO DESTINIES 279 the State's position, that it had standing based on necessity, required such a course. Morgan outlined the position, starting with the view that federation was a compact. The corollary, the States' Rights doctrine, was a security blanket of the smaller states and formed the basis on which they agreed to enter Federation. He charaderised the ruhgs of the High Court, particularly in labour law, as a process of destroying the Federal balance and contrasted it with the approach of the Privy Council in respect of Canadian labour law. He concluded that the Commonwealth had violated the Federal compact and that by such violation had conferred on Western Australia a legal right to secede from the otherwise indissoluble Commonwealth. In other words, he rested the first part of his argument on the retention by the State of its sovereignty, adding that the State did not have to suffer pretended encroachments on its sovereignty which breached the Constitution. Accordingly, he could rely on the American doctrine of secession elaborated by the Confederate States.'77 Secondly, Morgan argued that while there was a general convention that the United Kingdom Parliament would not legislate without the request and consent of the central legislature of a federal Dominion, such a convention was subject to an exception in cases of emergency and in the case of a breach of the Federal compact. The documentation of the Western Australian claim established on a case for a finding of an emergency and of a breach of the conventions of federalism and, in consequence established a prima facie right to have the United King- dom Parliament consider whether it agreed, on the facts, that the exercise of its extraordinary reserve power was warranted. Morgan pointed to an interesting example to prove his contention as to the existence of the residual emergency power. In particular, he noted that the regal power in respect of dissolution was ordinarily exercisable on ministerial advice but that in extraordinary situations it could be exercised unilaterally by the S0~ereign.l~~By analogy, the Western Australian claim was said to be a constitutional revolt. It was the Commonwealth that had breached constitutional conventions of feder-

177. A dubious tactic, although his reliance on Calhounian concepts was wisely left implicit rather than explicated. 178. The prophetic quality of this observation for Australians is obvious, as it presages the vice-regal arguments used in 1975 to justify the dismissal of the Whitlam government. 280 WESTERN AUSTRALIAN LAW FUWElV alism; this breach was so serious that it justified a deviation from the Balfour Declaration conventions by the Imperial Parliament. In this argument, he was drawing on assertions from the Western Australian Petition itself which contains some well drafted passages regarding the nature of popular sovereignty: The objective imposed upon a people by the laws of nature is the attainment of its own welfare and safety, which must be an everlasting duty, which a people owes to itself. The only reason for the existence of a set or sets of institutional machinery is to provide the people with the ostensible means of prosecuting the pursuit of that objective and the performance of that duty; and if the institutional machinery so erected becomes destructive of that objective, then the duty which a people owes to itself is to alter or abolish it and institute a new set of institutional machinery in such form and upon such principles as will be more likely in the opinion of that people, to effect the attainment of its welfare and safety. ... If self-government is to be a reality, it must be applied to political units of a suitable size, after taking into account relevant considerations. Representative democracy, as it is understood in Great Britain and in British communities, depends for its success on the possibility of a close contact between eledor and elected person. Unless this is secured, it is not real representation at Morgan's argument of course was also drawing on the philosophy laid out by Keith in his letter to the secession movement in 1931 and anticipated the doctrine later to be advanced as a hypothetical in the Rhodesian case. lsO On that basis, Morgan claimed to have established that the United Kingdom had the legal power to accede to the state's request and that there was no convention restraining the Parliament from considering that request in circumstances of an emergency arising from a breach of the federal principles of the Australian Constitution. Framing the same argument in another way, he said that the Commonwealth was not entitled to rely on a convention which provided that the wishes of the people in a Federation are to be conveyed through their central government, where the Commonwealth, in breach of the conventional nature of federalism, was refusing both to represent the wishes of those

179. Petition para 17(xix)set out in the Report supra n 77. The resemblance which this passage bears to the American Declaration of Independence is striking and, no doubt, intentional. 180. Supra n 146. 19901 TWO NATIONS, TWO DESTINIES 281 people, and to respect the nature of their sovereign position within the Federation. Thus the doctrine of the continuing legal sovereignty of the Imperial Parliament was combined with the contradstate sovereignty theory of federation, the doctrine of the emergency powers of the Parliament as an exception to Westminster conventions, and the convention that federalism must give adequate expression to the sovereign wishes of the constituent communities, in order to justify the Petition. Distilled, Morgan's argument amounted to an organic theory of sovereignty that relegated the institutional roles through which sovereignty is expressed to contingent positions and elevated to a central position the idea that the exercise of legal power by any British institution must ultimately conform to the sovereign will of the communities it represents. It must conform both to the historical definition of that sovereignty (the Federal pad) and to the current definition of that sovereignty (the Federal Pad must not through its design or operation oppress the present generation of citizens in a State). Morgan thus presented a twofold test for ascertaining when a constituent member of a federation can advance a claim to self-determination before the British Parliament. It could secede because the historical pad had been violated, or because the observance of the historical pact frustrated their right to selfdetermination, but only if the result in either case was a situation of dire emergency. Not only, Morgan continued, did the State have standing as a matter of substantive law to claim the right to secede, it had adopted the correct procedure and its petition was thus receivable. The amendment procedure in sedion 128 of the Australian Constitution could not be used to achieve secession; the Federation was bonded together by the covering clauses of the Constitution, Imperial legislation which only the Imperial Parliament could amend. Because the Imperial Parliament was the only vehicle which could grant the State's request and because the right of petition was coextensive with the legislative competence of the British Parliament, the Petition was receivable. Moreover, the Australian States, unlike the Canadian provinces, retained the right to approach His Majesty's Government directly, a fad proved by the decision of the Dominions Ofice to receive directly protests from the Australian States in relation to the effect of the Statute of Westminster Bill on the immunity of State Constitutions hmfederal alteration (a protest instigated in part by the Dominion League of WA in 1931).And that statute itself did not change matters; 282 WESTERN AUSTRALIAN LAW RENIE;W WOL. 20 it was yet to be adopted by Austraha (it would remain unadopted until 1942 largely because of state fears) and applied only to matters which were constitutionally the concern of the Commonwealth Parliament. Secession was clearly not a Commonwealth subject matter under the constitutional division of powers, and thus not a matter which reqwred the request and consent of Canberra (pursuant to section four of the statute) as a condition precedent to Imperial action. In contrast, the argument of Wilfred Greene was much more simple. He conceded the legal capacity of the United Kingdom Parliament to enact the requested legidation but denied that there was any constitutional capacity residing in the Parliament to ad. He based his contention on both the Balfour Declaration and the Statute of Westminster. In his view, the effed of the Balfour Declaration was to constitute the United Kingdom Parliament a bare legislative trustee; it had no constitutional capacity to interfere in the internal affairs of the equal autonomous communities within the British Empire. The Preamble to the Statute of Westminster confirmed this view. Furthermore, convention required the United Kingdom to presume that the sovereign will of a federal dominion was properly reflected only in a request by its central government for legislation. In the absence of any such request, the United Kingdom Parliament would have no basis upon which to conclude that its actions would reflect the consent or sovereign will of the affected peoples and, therefore, it would have no capacity to enact legislation in such circumstances. The request and consent mechanism of section four of the Statute of Westminster crystallised this procedural convention into a legal rule which bound the Imperial Parliament. Thus, Greene's argument accentuated the principle of non-interference above that of self-determination. The effect of such an approach is to allow the principle of self-determination free reign in unitary states such as Ireland and South Africa (leading to their independence) but to deny the principle in federal States, where the central government will of necessity always be opposed to any self-determination movement (which by definition threatens the federal system). Such disputes, in Greene's view, had to be resolved by the central and local authorities alone. He further accentuated the Commonwealth position, which was ultimately accepted by the Joint Select Committee, that the question of secession was a matter for the Australian polity as a whole. It concerned not only a particular State and the Commonwealth, but all 19901 TWO NATIONS, TWO DESTINIES 283

of the people of all of the States, and required a manifestation of that aggregate sovereignty in order to justifjr Imperial legislation. Is' Thus, both counsel were in agreement on the principle that the United Kingdom Parliament has a duty to ascertain, when responding to a request for legislation affecting a dominion, that the request reflects the sovereign will of the appropriate body of people. The difference between them was over the question of how the United Kingdom Parliament can make that determination. Greene's argument reduced the determination to the formal question of ensuring that the request is made by a particular institutional body, the central legislature, in a particular form (Parliamentary resolution or governmental request). Morgan's argument focused on the idea that while such is a presumptive rule, in extraordinary cases the Parliament can examine any request and decide for itself whether it in fad is the expression of a free and sovereign popular will, notwithstanding the form in which it is conveyed to the United Kingdom Parliament. One view casts the Imperial Parliament in the role of a mere machine to be manipulated by the Dominions; the other takes the view that the Imperial Parliament retains a residual power of adjudication in order to proted the liberty of the subjects of the Monarch. Since the Western Australian Petition, in fad both views have been taken at various times in constitutional matters. The Rhodesian case is an example of the adjudication principle. The statement by Jowitt in 1940 during the course of the passage of the amendment to the Canadian Constitution in respect of unemployment insurance is an example of the narrow view of the minimal role of the United Kingdom 1 Parliament. One regards the Parliament as having abdicated sover- I eignty; the other regards it as filling the vacuum left by the failure, during the processes leading to the Balfour Declaration and the subsequent United Kingdom Statute of Westminster, of the British Cornmon- wealth to reach any agreement on an intra-imperial dispute resolution

181. The arguments are set out in full in the Report. To grasp them, the whole must be read as the argument jumps from place to place. They are worth reading, as rarely is there available so full a report of the performance of two brilliant advocates at the peak of their rhetorical powers. Morgan, in particular, is a delight to read. 182. See Dawson supra n 74. 284 WESTERN AUSTRALIAN LAW RGVIEW WOL. 20

There were many other subsidiary points mooted in argument. There were long debates over the question of whether there was a constitutional practice of direct approach by constituent parts of federations to the Dominion's office or the Parliament, which centred around the South Australian Yondel' incident of 1902. As well, the Nova Scotia precedent of 1868 was discussed. Nova Scotia was included in the Canadian Confederation without its consent at the direction of the Colonial Office. One year after Confederation, it petitioned the British Parliament for release from the federal bond on the grounds that it was not assumed consensually. The case offered assistance to both sides. The petition was rejeded summarily by the Parliament but the petition was in fad received. It was not referred to by the Joint Select Committee in its decision. Both sides attempted rhetorical tactics, presumably directed at the Imperial members of the Committee, which on the whole were very poorly received. Morgan argued that if the Western Australian Petition was not given a hearing, the "unity of the Empire would be threatened" and the event could "shake the Empire to its foundati~ns"?~Reference was made to the Irish Free State to show the perilous condition of the Empire. The implication was that Western Australia might follow the Irish lead. In contrast, Greene warned that to entertain the Petition would destroy the Australian federation and threaten the Empire, a subtle warning that all Australians could easily become republicans. lS Both sides were able to invoke Burke, for in his views on the French Revolution he stands against the compact theory of government and yet, in his views on the colonies, he stands in favour of the notion of the right of self-determination as the ultimate defence of liberty. On this latter use of Burke, Greene did not, but might with profit have pointed out that Burke was Irish.

183. Report supra n 77, 118 and 141 arguments of Counsel. 184. Ibid, 141. 185. Ibid, 113. 1 19901 TWO NATIONS, TWO DESTINIES 285

1 Reservation of the Decision of the Joint Select Committee The arguments closed on 17 April 1935 and a long silence followed. The Committee met three times before reaching a decision, perhaps indicating a split in the Committee, or even that the Committee sought the British Government's views.'86Two weeks before, the secession delegation took the peculiar step of publishing the opinion from the eight King's Counsel in the State of Western Australia on the question of the receivability of the Petition. lsT If it was aimed at the Joint Select Committee, it was a foolish step given that the matter was already under consideration by the Committee; such interference would be likely to antagonise anyone familiar with legal procedure. If it was not aimed at the Joint Select Committee, it was a pointless step likely to embarrass the Counsel if they were wrong.'@ The purpose of publication is unclear from Watson's papers, but it is clear that Morgan co-operated in the process and actually drWthe Opinion to which the West Australian counsel were ultimately signatory. Morgan's draft was then passed on to Sir Walter James, who was orchestrating that matter at the Perth end. lmThe Opinion appeared on 2 April 1935 in the organ of the secession movement, the Sunday Times. Of the signatory Counsel, four were apparently members of the secession movement: Walker had participated in the preparation of the Secession Case, James had orchestrated the Opinion, Norbert Keenan was a key figure in the secession campaign, and Moss was a member of the secession delegation.

186. Just before the hearing, it was reported that Sir Thomas Inskip, the Attorney General, would address the Committee after counsel for the contending parties, to provide the views of the British Government: Somerville Papers supra n 8 (Clippings file). Curiously, he did not do so and one wonders how the Govern- ment's views were conveyed to the Committee. Somerville's Papers supra n 8 imply that Inskip may in fact have communicated with the Committee just before the decision (Clippings file: 15 May 1935). 187. Published in the Sunday Times on 2 April 1935, extracted in the Somerville Papers supra n 8 (Clippings file). 188. Something Beasley pointed out with delight after they were proved wrong: Beasley supra n 12,33. 189. See Watson's Papers supra n 8 Box 3. 286 WESTERN AUSTRALIAN LAW RGVIEW IVOL. 20

The Opinion was directed solely at the question of whether the Petition was receivable. It stated simply and with boldness that: There is under the law and constitutional practice at present existing, a vital and exclusive power in the Parliament of the United Kingdom to legislate on the subject matter of the said petition without the 'request' or 'concurrence' express or implied of the Commonwealth Parliament and therefore without reference to the Government or Parliament of the Commonwealth ... The people of Western Australian have the right of presenting the said petitions to the Parliament of the United Kingdom and the said petitions are proper to be received by that Parliament.lg0 The balance, and indeed the greater part of the Opinion was devoted to the effect of the Statute of Westminster, the implications of section 8 of that Statute, and the effect if the Statute were adopted by the Commonwealth of Australia.lgl It is possible, given the attention devoted to the Statute, that the purpose of the Opinion was to foreclose an attempt by the Commonwealth to adopt section 8 of the Statute as a way of pre-empting the receipt of the Petition by the Commons should the Joint Select Committee decision not be in its favour. On the other hand, the purpose could have been to insulate the secession delegation against charges of folly should the Joint Select Committee decision be negative. A third possible gurpose was to create some anti- imperial sentiment should the Petition be refused (by highlighting the divergence between local and Imperial interpretations of the Constitu- tion), on the ground that it would then be necessary to pursue the double revolution process.

190. Supra n 187. 191. It is unclear from Watson's Papers, but it appears that Morgan's own opinion on this point may have been changed to make it stronger for publication purposes: see Watson's Papers supra n 9 Box 3 (Morgan's Draft Opinions and correspondence between Watson and James over the opinion). TWO NATIONS, TWO DESTINIES

2.3 The decision of the Joint Select Committee On 22 May 1935 the decision of the Joint Select Committee was released. In contrast to the voluminous argument presented to the Committee, its conclusions were brief, contained in a mere thirteen paragraphs. The report in short announced the end of the Petition process. In paragraph 2, the Committee pointed out that its jurisdiction in respect of the evaluation of the propriety of petitions was not merely a formal jurisdiction: There is no question as to the undoubted and ancient right of Parliament to receive whatever petitions it thinks fit, or the historic right of the subjects of the Crown to present petitions to Parliament. But these rights, like the abstract right of Parliament to legislate for the whole Empire, are only exercised, in relation to the affairs of the Dominions, in accordance with certain long- established and clearly understood constitutional principles, principles to which Parliament has more recently given its formal and statutory approval in the Statute of Westminster. It is in light of these principles that the Committee conceive it to be their duty to report ... whether ... the petition is one which it is proper for Parliament to receive.Ig3 In paragraph 4, the Committee indicated that the hardships recited in the Petition were not directly relevant to the constitutional issue. Similarly in paragraph 5 the Committee dismissed the relevance, put forward by Mr Greene, of other remedies or mechanisms available to the State to seek redress for its grievances. Paragraph 6 confirmed that the grant of the Petition was within the legal competence of Parliament and noted both that section 128 of the Constitution conferred no jurisdiction on the Commonwealth to legislate in respect of secession, and that the United Kingdom Common- wealth of Australia Constitution Act 1900 itself conferred no unilateral right of secession upon the States: The Act gives no power to any State to secede. The Commonwealth itself has no power to amend the Constitution to the extent of enabling any State to

192. The decision of the Joint Select Committee appears at pages vi-ix of the Report supra n 77 (in technical terms this is the Report, the balance of HC 88 being prologue or annexures), a mere four pages, a stark contrast to the annexure entitled "Minutes of Speeches Delivered by Counsel" which is 150 pages in length. The citations from the decision in the discussion of its reasoning will be by paragraph and left in the text of the article. 193. This confirmed however that the decision was to be based, ostensibly at least, on constitutional principles, not on political considerations. 288 WESTERN AUSTRALIAN IAW RFVIEW WOL. 20

secede. It is only by legislation in the Parliament of the United Kingdom, therefore, that the dissolution of the Commonwealth or the secession of any of its constituent parts can be effected. The report went on in paragraph 7 as follows: It is however a well-established convention of the constitutional practice governing the relations between the Parliament of the United Kingdom and other Parliaments of the Empire, that the Parliament of the United Kingdom should not interfere in the affairs of a dominion or self-governing state or colony, save that at the request of the Government or Parliament of such dominion state or colony, that is to say, in effect, that interference will only take place at the request of such dominion, state or colony speaking with the voice which represents it as a whole and not merely at the request of a minority. That rule was well-established before 1900, and has been consistently acted upon as an undoubted constitutional convention. That conclusion cut to the heart of the secessionist case. The principle of noninterference in Dominion affairs would take prece- dence over the principle of self-determination which lay at the root of the Balfour Declaration itself. In other words, the Imperial Parliament would become the machinery of the Dominions and would retain no residual capacity to adjudicate on claims to selfdetermination made by any portion of a federation it had created. Paragraph 8 went on to elaborate that the request in the Petition for United Kingdom legislation was not a general demand by the citizens of the Commonwealth "constitutionally expressed in the Common- wealth Parliament and transmitted by the Commonwealth Govern- ment" but merely a request of a government of a particular State which, as such, "is not concerned with Commonwealth affairs". The Commit- tee went on to note: It is essential in this connection to keep in mind that Western Australia, in joining the Commonwealth, surrendered all those powers, previously enjoyed by it as a self-governing colony, which under the Commonwealth ofAustralia Constitution Act, were vested in the Commonwealth, and that it has since the coming into operation of that Act, continued to exist as a political entity only in respect of the powers which remain vested in the States. In this paragraph, the Committee rejected the compact theory of Federation and refused to regard the Commonwealth as possessing delegated powers from the States. It limited the notion of State sovereignty to being sovereign "within the ambit of its powers ...". Paragraph 9 went on to emphasise that the division of power between the Commonwealth and the States was constitutionally fundamental and must govern the exercise of the United Kingdom legislative powers. It noted that the United Kingdom was entitled to legislate in 19901 TWO NATIONS, TWO DESTINIES 289

respect of matters pertaining to the Commonwealth only at its request, and in respect of State matters, only at the request of the State authority. It went on to state the passage most often quoted from the report: The State of Western Australia, as such, has no locus standi in asking for legislation from the Parliament of the United Kingdom in regard to the Constitution of the Commonwealth, any more than it would have in asking for legislation to alter the Constitution of another Australian State, or than the Commonwealth would have in asking for an amendment of the Constitution of the State of Western Australia. The logic of the Committee's conclusion by this point is open to question. Having conceded that neither the Commonwealth nor the States have legislative power in respect of secession, and having classified the Commonwealth and the States as sovereign only within the sphere of their respective legislative capacities, and having indicated that the use of the legislative power of the Imperial Parliament is only restricted by convention in respect of requests made within the scope of the relative powers of the two levels of Australian government, it would appear that secession raised a question in respect of which there was no clear convention to guide the Imperial Parliament in the exercise of its exclusive legislative jurisdiction over the matter. Rather, the United Kingdom Parliament had to exercise ajudicial function in defining what sort of expression of sovereign will would constitute a legitimate request for secession legislation, and to which group of people or institutions it would look for the evidence of that expression of sovereign will. The Committee's error in this regard is highlighted by the fad that it refers to the Petitioner as the State of Western Australia, when in fad the Western Australian Secession Act (No 2) 1934 and the Petition were structured such that the delegates were ading not only on behalf of the State, but directly as agents of the People of the State as well. Owing to this analytical misdirection, the decision really provides no guidance as to the fundamental issue in a secession situation. Secession is not a battle between two levels of government, both of which represent one People; it is not an issue of institutional competence. Rather the problem is that one People has undergone mitotic division, and the questions to be considered are at what point does the emergent second People acquire standing to speak for itself, and through what institutional organs can this new People be heard? 290 WESTERN AUSTRALlAN LAW REVIEW IVOL. 20

These are questions which the Second Empire had been able to answer since the Durham Report of 1839. They are questions to which International Law has ready answers today. Burke and Camden saw that the British could not speak for the Americans once they acquired a distinct self-identity. Similarly, Canberra was hardly the appropriate agent of a People who sought to withdraw from the pan-continental experiment of Parkes on the basis of their own distinct identity and desire for self-government. But the Joint Select Committee rehsed to face the possibility that Australia had become two Peoples. In failing to squarely address the question of standing in relation to secession, it abandoned the logic of self-determination that was the cornerstone of the Second Empire. The political dangers of this logic were more than apparent to an Empire in the process of abdicating responsibility in respect of any difficult questions. Churchill had already expressed his frustration in this regard, but it would be another five years before he would restore any sense of British resolve and then only under the circumstances of the most extreme provocation. By refusing to recognise the logical implications of the unresolved question in the conventional structure of both the Australian and British Commonwealths, the Committee washed its hands of the problem of secession with a &redion to the parties to fight it out amongst themselves. Paragraph 10 deals with the effect of the Statute of Westminster, which the Committee took to confirm its views. Because the Statute prohibited the Parliament of the United Kingdom from passing a law extending to a Dominion part of the law of that Dominion otherwise than at the request of that Dominion, the Committee concluded that no secession legislation could be passed without a signal from the Com- monwealth Government. It did not deal with the arguments raised by Morgan that a law in respect of secession was not part of the law of a Dominion but rather was a law for the Dominion and thus outside the operation of the section. The question of secession was never addressed during the conferences leading up to the Statute of Westminster, so there was no basis for reading the preamble to the Statute or section 4 thereof as authorising the interpretation that secession legislation must be requested by the central legislature of a Dominion. Moreover the assurances given to the smaller States of Australia upon their protest in respect of the effect of the Statute of Westminster, which led to its non- adoption until 1942, emphasised that it did not confer unilateral power 19901 TWO NATIONS, TWO DESTINIES 29 1 upon Canberra to request constitutional changes from Westminster outside of federal legislative competence.IN Paragraph 11 went on to discuss the Preamble to the covering clauses of the Australian Constitution and highlighted the recital as to the uniting of the States in one indissoluble Commonwealth. It emphasised that Western Australia entered Federation on the same footing as the other five States specifically referred to in the Preamble. It then announced: The Parliament of the United Kingdom in enacting the Constitution, was giving effect to the voice of the people of the continent of Australia and not the voice of any State or States. It is only therefore when invoked by the voice of the people of Australia that, according to constitutional usage, the Parliament of the United Kingdom can properly vary or dissolve that federal union. The Committee went on to state: It is true that ... the Parliament of the United Kingdom alone can pass an Act which would have that result. It is true also that this Parliament has in law full competence to do so, even against the wish and without the consent of the Commonwealth. To do so indeed would not be outside its competence in the strict legal sense. But it would be outside its competence, if the established constitutional conventions of the Empire are to be observed, as observed they must be. Only by observance of this principle can the legal competence of the Parliament of the United Kingdom to legislate for the internal affairs of any dominion or self-governing state or colony be reconciled with the fundamental conception of them as autonomous communities. And apart from theory, it would be easy to state thepractical difficulties whlch would follow from any departure from this principle. Hence what the petition prays for is, in that sense, something which is beyond thejurisdiction claimed by the Parliament of the United Kingdom. (emphasis added). These two small paragraphs open up the heart of the Committee's views. Firstly, they are again taking aim at the compact theory of federation. Australia was not a compact of States; Federation was an act of the people of the continent as a whole. The claims of the American secessionists, that 'We the People of the United States" referred to the peoples of the individual states, not to the people in aggregate, were similarly rejected by the Unionists in 1860.'95 Secondly, the Committee is invoking a conception of sovereignty which is not purely institutional or formal, in its definition of the criteria which would justify action by the United Kingdom Parliament on a request for secession. It refers to the Parliament giving effect to

194. Morgan made these points in argument. 195. Hyman and Wiecek supra n 85. 292 WESTERN AUSTRALVW IAW RGVIEW the voice of the People of the continent of Australia. It is the voice of the People, not merely their institutional agents, to which the United Kingdom can respond, according to constitutional usage, to vary or dissolve the federal union. This highlights how the Committee has deviated from past Imperial policy. It simply assumes there is still a single Australian People which speaks with a single voice, when before their very noses, there were arguably two Peoples represented by contending counsel. In the Treaty of Paris of 1781, the Durham Report of 1839, the formation of Vidoria in 1850-1851 and in numerous other cases, the British were willing (under varying degrees of pressure) to recognise the emergence of a new and distinct People and to concede to them the institutions of self-government. Western Australia itself was the beneficiary of this principle in 1890. Now faced with two Australias, two voices, two destinies, the Committee would remain tone deaf to the reality of political evolution, rejecting that enlightened realism which British statesmen of the previous century had made the basis of Imperial harmony. There was instead a competing principle which was dominant in the Committee's mind - the problem of interference and the practical difficulties which would result from the actual exercise of any British judgment. The conventions must be observed because the United Kingdom was seeking to abdicate any responsibility for governance of its colonies. From the point of view of the United Kingdom, the nature of the right of self-determination was thus fured in stone as of 1926 in the case of federations; any fissuring movements which evolved after that time would have to be directed not to persuading the United Kingdom Parliament, but to overcoming the will of the domestic central authority. The double revolution became the only road to secession; the Irish path must be followed. The delicate route mapped out by the Western Australian secessionists, based upon the attempt to reconcile the right of self-determination with the heartfelt obligations of its people to the Crown, and upon the ability on the part of the United Kingdom to play a role as adjudicator, became impossible. The Imperial Parliament would remain blind to the new claims for self- determination that would inevitably arise after 1926 from disaffected sub-groups within the dominions, both federal and unitary, over time. Those claims were to be left to the autonomous communities to sort out internally. 19901 TWO NATIONS, TWO DESTINIES 293

It is important to recognise that this is in fact an abdication of sovereignty by the United Kingdom. The reference to the limits of the ''jurisdiction claimed" by the Imperial Parliament, and to its constitutional "competence" confirm this view. To make the convention absolute, to refuse to admit an exceptional jurisdiction whereby the British Members of Parliament could still exercise discretionary judgment, is ts acknowledge that Members of Parliament appointed by the residents of British soil have no voice in southern hemispheric affairs. To make such an abdication where the convention ought not logically to apply, reflected the general lack of British will. Britain was to back track on its position somewhat on the Rhodesian question in 1965 (as discussed above), but ultimately never maintained seriously its right to exercise Imperial authority over Rhodesia, and eventually recognised the legal authority of the Smith government, at least de facto, if not de jure. It was not until the Canadan question of 1980-1981 that the Empire would strike back. Nevertheless the Report of the Joint Select Committee remains significant, for it makes clear that, notwithstanding the principle of non-interference, the expression of the sovereign will of a dominion is not to be tested solely by formal criteria. The concluding passage reinforces this view: ... The petition of the State of Western Australia asks for legislative action, which, in ... [the] opinion [of the Committee], it would be constitutionally incompetent for the Parliament of the United Kingdom to take, except upon the definite request of the Commonwealth of Australia conveying the clearly expressed wish of the Australian people as a whole ... In short, although a request by the Commonwealth Parliament was the correct formal procedure to initiate Imperial legislative action, any such request would lack constitutional substance unless it bore the endorsement of the whole of the Australian people. Thus, when faced with a request for legislation,the United Kingdom Parliament has two questions to consider: is the request in the proper form, and is the request substantially valid as an expression of popular sovereignty? This is the most significant lesson of the Joint Select Committee case and this is why it had direct relevance in the Canadian constitutional patriation process. At the same time, the Joint Select Committee decision does not foreclose the possibility of State secession. It simply means that the only possible mechanism for the expression of self-determination by a 294 WESTERN AUSTRALIAN LAW RE;VIEW WOL. 20 constituent part of a larger whole is through unilateral action. One consequence of this decision though is that such unilateral adion is not illegal from the point of view of the United Kingdom, as it has no jurisdiction to pass any judgment on those questions. A corollary point is that there is no longer any neutral third party adjudicator which can pass judgment on the legitimacy of a demand,to secede from a federation. The parties to the federal pact themselves have become the sole judges of questions of secession and, unless the other parties in a federation are willing to use force, a discontented province or state is thus the sole judge of the legitimacy of its federal bonds. For Western Australia, or at least its generation of secessionists, 22 May 1935 was the end of a dream. The dream - that they co~lldappeal to the eternal justice of the Mother of Parliaments to be given their freedom was merely an hallucination; there was no longer any super- intendent of the political evolution of the British offspring. lg6 If Free- dom was to be had, it would not be given. It would have to be taken.

2.4 The Aftermath Of The Secession Movement Reflect how you are to govern a people, who think they ought to be free, and think they are not.I9' Burke on the American Colonists claims. Watson's reaction was dramatic. Whether it was emotional or calculated is unclear.lB On 27 May 1935, the London Daily Herald carried the following story posted on billboards across the city: "Western

196. For the colonies of the third world, the British would still play this role for another half century, and it remains in this role in Hong Kong today. But the Hong Kong process is a very good example of how British attitudes have changed. The British will leave in 1997, but will not leave Hong Kong with self-government. The spirit of the Second Empire is dead. 197. Quoted in Watson supra n 6, 10. The tract was written after the failure of the Petition. It compared Western Australia to the American Colonists, concluding with an appeal for a unilateral declaration of independence. A draft Bill to that effect was appended to the pamphlet. 198. Watson's reaction was emotional, as he was to admit in a later interview (discussed below). But it had an element of calculation. He had threatened a Fremantle Sugar Party in the past: infra n 204. Moreover Watson was evidently pleased with the publicity, as he then prepared draft press released to publicise it further: Watson Papers supra n 9 Box 3. 19901 TWO NATIONS, TWO DESTINIES 295

Australian Secession - Sensational Statement". The sub-heading was 'Western Australian Secession: Threat of Force Only Means Left. Delegate Says Laws Likely To Be Defied".'gg The dramatic statement was in response to reactions to the Joint Select Committee decision that had appeared in the Australian press. Premier Collier, who had collaborated with the Western Australian representatives preparing The Case For Union, was measured in his response and noted: This is not the end of the matter as far as Western Australia is concerned ... There will have to be a change of mind and attitude on the part of the Federal Parliament towards the smaller states and serious consideration will have to be given to the making of amendments to the Constitution. I feel certain that the people of Western Australia will fight on until they receive a measure ofjustice from the Federal Parliament. The position as it exists today and has existed for years past is intolerable to the people of Western Australia and, unless great changes are made, federation as we know it will not last another 10 years.200 Mr Lyons on the other hand gloated as follows: I am pleased, of course, with the substance and unanimity of the report, not because I have any desire to suppress discussion of Western Australia's special problems, but because I feel strongly that any such discussion should take place in the proper forum, namely, the Commonwealth Parliament, or before any Commission such as the Federal Grants Commission, established for that purpose.

The Committee's report recognises and acts upon a view of Dominion status which is in line with that commonly entertained in the Dominions and marks out the respective jurisdictions of the Parliament of the United Kingdom and the Parliaments of the Dominions in such a way as to avoid future embarrassment to any of them. It is a notable contribution to modern understanding of the constitutional future of the British Empire."' The word embarrassment probably struck a keynote with Watson, but as to the future of the British Empire, it should have been clear to anyone after 1935 that it would not be much more than a debating society.

199. The Daily Herald was a leading labour paper in London at the time. An original copy of the poster can be found in Watson's Papers supra n 9 Box 2. A copy of the article itseKis in the Colebatch Papers supra n 13. 200. "Not the End" The West Australian 25 May, 1935 extracted in the Somerville Papers supra n 8 (Clippings file). 201. "Mr Lyons Pleased" West Australian 25 May, 1935, extracted in the Somerville Papers supra n 8 (Clippings file). 296 WESTERN AUSTRALIAN LAW REVIEW [VOL. 20

Even more galling was the suggestion that the Federal Grants Commission was an appropriate forum for the resolution of small state grievances. The informal process of going cap in hand to the Common- wealth for grants had always been a central complaint of the secessionists. The Federal Grants Commission, set up by Lyons after the secession referendum, had done nothing to ameliorate this situation. Its fmt report on the Western Australian application had come out just as the Petition was ready to be delivered to London. It was condescending in tone, and while recognising Western financial need, it saw "nothing ... to suggest that any part of the machinery set up by the Constitution Lwasl ... vitally defective." It attributed some of the state's distress to its own mismanagement, and actually made deductions from the grant in respect of policies with which it disagreed, calling them "the State's own mistakes".202The Commission was a poor substitute for self- government. It was perhaps, however, the sense that Western Australia was apparently trapped by the decision that provoked Watson's explosion. It was perhaps also his attentiveness to the course of De Valera's affairs

202. The Case For Secession supra n 9 complains about the servility of seeking grants, as did many of the Premiers including Collier: see West Australian 29 May 1935. The report of the Commonwealth Grants Commission on the 1933 applications for financial assistance was issued on 21 July 1934 and was published under the following title: Commonwealth of Australia, Commonwealth Grants Commission, Report on the Applications made in 1933 by the States of South Australza, Western Australia and Tasmania, for Financial Ass~stancefrom the Common- wealth under Section 96 of the Constitution (Canberra: AGPS 2512, 1934). For the quotes see ibid 136, 134. A copy is found in Watson's Papers supra n 9 Box 2 together with some key secession papers, indicating perhaps its place in his thinking. A fuller discussion of the grants process would be an essential aspect of a fuller account of the secession movement, as Justice Nicholson of the Supreme Court of Western Australia and Geoffrey Craven have astutely pointed out in a comment on a draft of this paper. Neither space nor time has afforded as yet an opportunity to undertake this task. Greenwood supra n 35 c 5 discusses the secessiodgrants connection briefly, as does Watt supra n 8,56,86. See also T Stannage (ed) A New History of Western Australia (Perth: UWA Press, 1981) 420 n 79, where it is noted that Watson, in a 1964 interview with David Black, pointed to the Grants Commission as the most significant legacy of the secession agitation. 19901 TWO NATIONS, TWO DESTINIES 297 that shaped his reaction, In particular, Watson, in reply to Lyons, said that secession would take place by force if necessary, that the Domin- ion League would organise a volunteer army to stop the collection of customs duties at the port of Fremantle, and repeated a claim previously enunciated by Sir Hal Colebatch in a 1934 speech at a secession gathering, that it would be unconstitutional for the Commonwealth to use the army in Western Au~tralia.'~Watson's call for the seizure of the customs apparatus echoed his earlier proposal to hold a "F'remantle sugar party" modelled on the Boston tea party in order to express Western Australian rejection of the Federal strategy of subsidizing the Queensland sugar industry through Federal tdpoli~y.~ The immediate reaction of the other secession delegates was to disassociate themselves from the intemperate statement.205Watson himself had been away too long from Western Australia and was out of touch with sentiment there. The tide had slowly turned away from secession under Collier's leadership and his statement invoked no ground-swell of support. If he was purporting to follow the Irish example, he was doing so unskillfully. Perhaps the ultimate insight into the non-interventionist posture taken by the Joint Select Com~nitteecan be gained from the articles which appear on the same page as the discussion of Watson's dramatic statements on 27 May 1935. In the Herald that day there was a note about the coming to pre-eminence of Blum and the French Socialists. An election was not far off in Britain, which would see the great abdicator Chamberlain come to power. Most significant of all, was an article that Adolf Hitler would not agree to disarm. In that context, it is hard to imagine the British doing anything to further disrupt the crumbling Empire, notwithstanding the constitutional and moral arguments to the contrary. In July of 1935, Watson was asked by the Sunday Times to comment on his extreme reaction to the failure of the Petition. He noted that he took sole responsibility for the statements but, in a passage

203. Daily Herald 27 May 1935. A copy of the article can be found at Battye Library Archives 240A, as can the Colebatch speech. 204. Supra n 203. For the earlier threat of the sugar party, see Somerville Papers supra n 8 (letter of 19 April 1934). 205. Supra n 203. 298 WESTERN AUSTRALIAN IAW RENIEW WOL. 20

which displays both his rhetorical capacities and the depth of his sentiments, suggested: If I have been outspoken in this matter, it is only because the rights and liberties of a people are involved; rights and liberties which will not permit of their being made a secondary consideration to the personal feelings of anyone; rights and liberties which, as Mr Baldwin never tires of reminding his hearers, are the very air we breathe and for which our ancestors gave their lives; rights and liberties which are far too sacred to be trifled with by any politician however exalted his position; rights and liberties which are far too precious to be endangered by any political manoeuvre and endangered to such an extent that they might require to be reasserted with the viguur and a manner that will leave no doubt as to the resolute determination of the people of the sovereign state of Western Australia - the most loyal State in Australia - to maintain their inalienable right of self-determination. History will record this [the decision of the Joint Seled Committee] as the greatest and most despicable abdication of all time.20" The secessionists did continue their agitation in both Western Australia and London throughout 1935. Their hopes remained sus- pended as they focussed on Lord Hailsham's promise that the Houses of Parliament would have the opportunity to reject the report. The secession delegation responded to the Joint Seled Committee report, rejecting its decision on the receivability of the Petition in a formal statement issued on 30 May 1935. It then relied on its friends in the House to press the British Government to schedule a debate on the report. Questions were posed to the Prime Minister and the Attorney- General eliciting non-committal responses. J P Dickie MP in posing one such question warned the Government that "no form of government was any substitute for self-government", that the Western Austra- lians may "take the law into their own hands" and that there was "nothing to prevent the State from voluntarily walking out of the Commonwealth". But the government continued to stall and the Joint Select Committee's Report simply lay silently on the Table of each Hous~.~ The delegation leR London at the end of June and pursued the fight at home. They emphasised to the press that agitation in favor of the Petition should continue until the Dominions Secretary forwarded an

206. Sunday Times 17 July 1935 (extracted in the Somerville Papers supra n 8 (Clippings File). 207. The post-decision events are summaries in the Final Report of the Secession Delegation supra n 129,6. Dickie's question, a transcript of which appears in Watson's Papers supra n 9 Box 2, was put on 24 June 1935. TWO NATIONS, TWO DESTINIES answer from the King.m They later canvassed the possibility of having the State ask the Commonwealth to reforward the Petition - to which Collier responded in a non-committal fashion.209But their faith in Empire shattered, they also continued to press the aggressive option of unilateral independence. On 24 September 1935, Watson bitterly attacked the British Government and the Dominions Secretary, issuing a challenge: The question before the people of the State [is] whether they [are1 going to take the decision of the British Government lying down and ad as a conquered race, or act as free men and take what they I~ant].~'~ By November of that year, the Dominion League under Watson formally adopted the Irish strategy, calling for a unilateral declaration of independence by the State of Western Australia, even if that necessitated a double revolution against Commonwealth and Crown. A draft Bill to that effect was contained in a pamphlet of 8 November 1935, which was presented to the State government for considerati~n.~" Time had, however, outstripped the movement and the economic recovery in fad had started. The failure of the secession Petition was not understood back home except as an expression of the incompetence of the people who prosecuted it; the complexities and evolution of intercolonial constitutional relations were never grasped by the members of the Legislative Assembly, let alone by the people at large. With ownership of the Sunday Times passing out of the hands of the secessionists earlier that year, they lost a critical tool of their propaganda. A formal reply to the secession Petition issued later in Novem- ber of that year confirming His Majesty's rejection. The complexities of international affairs assumed centre stage and the secession movement itself dwindled into insignificance and was buried in a pauper's grave by the end of the decade.212

208. See the interviews with MacCallum Smith and Watson in July 1935 supra n 164. 209. Somerville Papers supra n 8 (Clippings File: December 1935). See also supra n 113. 210. Ibid (Clippings File: 24 September 1935). See also supra n 112. 211. Watson supra n 6. See also the Somerville Papers supra n 8 (Clippings File: November 16,1935). 212. Watt supra n 8,81-82. 300 WESTERN AUSTRALIAN LAW RGVIEW WOL. 20

2.5 The relevance of the secession movement to the Canadian patriation exercise of 1982 In large measure, the relevance of the Western Australian secession movement to the Canadian constitutional patriation exercise has already been outlined. First, both the decision of the Joint Select Com- mittee and the Patriation Reference Reference offer striking parallels. They are both extraordinary examples of situations where a specially constituted court (in the Canadian case the court was acting under an advisoryjurisdiction) was empowered to adjudicate on pure questions of convention. Secondly, the questions were referred to the courts in advance of a proposed exercise by the British Parliament of its legal sovereignty and, in the Canadian case, of the proposed exercise of the legal power of the Canadian Parliament to pass a resolution. Thirdly, in both cases, the courts decided that a single member of the federation (in the Canadian case the central legislature) had no standing to request the British Parliament to enact an amendment to the Constitution which affected other members of the federation unless there was evidence underlying the resolution that it reflected the exercise of the sovereign will of the people of the dominion as a whole. Kenneth Wheare made particular mention of the "peculiar" comments of the Joint Select Committee in this regard.213The Supreme Court of Canada in the Patriation Reference even went further than the Joint Seled Committee in that it established some indication of the criteria by which evidence of the consent of the Canadian people as a whole to a constitutional amendment could be ascertained by the British Parliament. The other part of the Canadian equation is the hearings before the Foreign Affairs Committee of the British Parliament on the question of receivability of the resolution of the Canadian Parliament. As noted above, the Foreign and Commonwealth Affairs Oflice ("FACAO"), in its brief to the Committee (which was ultimately adopted) relied (in part) on the report of the Joint Select Committee to conclude that for a joint resolution of the Canadian Houses of Parliament to be properly receivable by the Imperial Parliament, such a resolution had to be a manifestation of the consent of the whole of the Canadian people. The FACAO did not define precisely what form the evidence of that

213. KCWheare The Statute of Westminsterand Dominion Status 5th edn (London: Oxford University Press, 1953) 218. 19901 TWO NATIONS, TWO DESTINIES 301 consent would take but simply affied the right of the British Parlia- ment to look behind the formal resolution of the Canadian Parliament itself. In taking this position, they directly contradicted the view of the Canadian Department of External Affairs which interpreted conventional practice as simply requiring the United Kingdom Parliament to legislate whenever they received a request in proper form; External Affairs brazenly denied that the United Kingdom Parliament had jurisdiction to enquire into the underlying question of whether the resolution itself was a valid reflection of the exercise of Canadian sovereign will. The position taken by the Foreign Mairs Committee convinced the Canadian Government that it would have to seek a broader measure of provincial consent, or seek a judicial definition (through an advisory opinion) of the institutional form or procedure by which, according to Canadian constitutional convention, the consent of the whole of the Canadian people to patriation of their Constitution should be manifested. They chose the latter course, and the Court, by defining the conventional form of assent as being the assent of a "substantial" number of the provinces, forced the central government to actually seek a broad measure of provincial consent before adopting a resolution requesting the United Kingdom Parliament to amend the United Kingdom British North American Act 1867. Such a broader consensus was in fact achieved. At that point, the British Parliament took the joint resolution, together with the evidence of provincial consent, together with the decision in the Canadian Patriation Reference as sufficient evidence that the joint resolution of the Canadian Houses of Parliament was in fact an exercise of Canadian sovereign will. The requested constitutional amendments were duly enaded, and aRer more than half a century of effort, indeed an effort provoked by the Balfour Declara- tion itself, Canada finally obtained the power to amend its own Consti- tution. 302 WESTERN AUSTRALIAN LAW REVIEW

2.6 New meanings of sovereignty, new means of secession

General reflections on the abdication of sovereignty

The larger significance of the Canadian and Western Australian processes is that they are evidence of the redefinition of the nature of sovereignty in the Dominions. In relation to the Dominions, the formal conventions recognized in the Statute of Westminster are to be strictly observed, according to the Joint Select Committee report, and in consequence, the Imperial Parliament is truly a bare legislative trustee or, in other words, it has truly abdicated its sovereignty. As Dicey notes, abdication can either take the form of self-extinguishment or of a transfer of sovereignty.214The Balfour Declaration arguably suggests that the abdication was a transfer of sovereignty to the dominions: the transfer made them autonomous and fully sovereign. To whom within the autonomous dominions did the United King- dom's powers pass? That question is better answered by dealing with the question: for whom was the United Kingdom Parliament a trustee?"'" On that issue, both the Joint Select Committee Report and the Patriation Reference give the same answer: it was and is a trustee for the sovereign peoples of the autonomous dominions, not for their legislative institutions. Institutions are mere vehicles for the expression of that popular sovereignty. The people, not their Parliaments, and certainly not the United Kingdom Parliament, have become the well- spring of power and law in both Australia and Canada. In a federal nation, who becomes the beneficiary of this sovereignty surrendered by the United Kingdom - the people of each state or sub- unit or the people of the nation at large? And more particularly, which group in Australia has become the transferee of the United Kingdom's Parliament's legislative authority over secession? One way to answer this is to say that the power has been allocated to the organ under the Constitution which possesses the unallocated residuary power in the constitutional system. On that analysis the power of the United King- dom Parliament to dissolve the Australian federal tie has enured to the

214. Supra n 167,6566 n 3. 215. A paraphrase of a famous question in corporate law by Professor Merrick Dodds. 19901 TWO NATIONS, TWO DESTINIES 303 benefit of each State, whereas in Canada the result would be the reverse. Another way of looking at the question is to conclude that the Joint Select Committee constitutes the Australian People as a whole as the sovereign, and thus only the People of the whole nation can draw new borders on the continent. That, however, is a misinterpretation. The definition of sovereignty in the Joint Select Committee report is tempered by the principle of non-intervention. Accordingly, for the purposes of the United Kingdom Parliament, by 1935 an outsider in Australian affairs, the sovereign is the whole of the people. However, within a federation, where sovereign power is allocated to different levels of government on an issue by issue basis, the problem of who or what group of people has sovereign power over secession is a different question. A further point of significance is that when a convention is super- imposed on a sovereign, its sovereignty as a factual matter passes to another institution. Thus, the British monarch is no longer factually a sovereign; Dicey spoke confidently of Parliamentary sovereignty. But it is clear from the Joint Select Committee report that it is not even the King or Queen in Parliament that is sovereign any more, it is the People in Parliament. In fad, the people are the sovereign; a parliament is only a form by which their sovereign will is expressed. The Joint Select Committee report expressly recognises that popular sovereignty can be manifested in informal ways, that it is prior and superior to form. This is the same idea accepted by the Supreme Court of Canada in the Patriation Reference, which declared that Canadian sovereignty was not manifested by a formal resolution of the Canadian Parliament, unless supported by substantial provincial consent to a fundamental change. This 'formula' was not written into the United Kingdom British North America Act 1867; rather it represented, for the Supreme Court of Canada, the factual conditions precedent to a conclusion that the Canadian People had expressed a desire for fundamental constitutional change. Since 1935, Dominion sovereignty has been popular sovereignty. Popular sovereignty is an organic principle; it can be exercised and evidenced in various ways. Parliament is simply a convenient form, and forum, for its expression. It is, on its face, evidence of popular will, a useful heuristic which courts and bureaucracies need in order to be able to perform their functions. Nevertheless, the Patriation Reference and the Joint Select Committee decision indicate that the courts are 304 WESTERN AUSTRALIAN LAW RENIEW willing in appropriate circumstances to look at popular sovereignty from a purely substantive point of view.

The secession of an Australian State If an Australian state were to attempt to secede today, what would be its position? Obviously there would be little point in appealing to Britain, particularly after the United Kingdom and Australian Com- monwealth Australia Acts 1986, which purport belatedly to terminate Imperial legislative jurisdiction with respect to Australia. Equally obviously, Canberra and all the States could reach an agreement. Thirdly, a rebel state could break away unilaterally, and if strong enough, defend its position until it attained international recognition and Canberra lost its resolve. AU of these points are self-evident. However, based on the foregoing, it could also develop a legal defence of its attempt to secede. First, it could argue that the 1935 Joint Select Committee Report was a declaration that the United Kingdom Parliament had abdicated its sovereign power to dissolve the federal tie in a situation of State/Commonwealth conflict, that Imperial sovereignty in this regard had been transferred to Australia, and that not being within the Commonwealth heads of power, the authority to dissolve the federal tie must be within the legislative competence of each state. The Australia Act 1986 does not change this position. While in section five, it purports to insulate the Commonwealth of Australia Constitution Act from alteration by State legislatures, this relates only to the exercise by a State of power deriving from the Australia Act itself. The argument here is that authority over secession passed to the States long before the Australia Act was ever conceived. A second argument could focus on another aspect of the Report. Having recognised that Australian sovereignty resides in its people, not its institutions, should that people subdivide into two distinct communities of peoples, the Report implies that institutions which do not properly reflect the will of both peoples cannot necessarily expect that courts will enforce their decrees. This can present one of the occasions where it is proper for courts to look behind the decrees and declare them to be tyrannical rather than representative. Similarly, the courts of the rebel state may be in a position to elect to treat the organs of the state as the sole sovereign representative of the newly emergent people, and it may be legally correct and even legally obligatory for them to do 19901 TWO NATIONS, TWO DESTINIES 305

SO.~'~Aunilateral declaration of independence by the rebel State in those circumstances may be a legal act that the State and even the Federal Courts could, and even should, enforce. Everything of course depends on the factual questions of whether the people of the State constitute a second Australian community incompatible with the national community, and whether the sovereign will of this people is represented or capable of representation through appropriate and identifiable institutional agents or machinery. The former question is often answered through a referendum prior to the declaration of independence. The latter constraint makes it much easier for a state rather than an unorganized people to secede; it is also one reason why popular self- determination movements form provisional governments well in advance of attaining their obje~tive."~ Furthermore, it has been a constitutional principle of the British Commonwealth throughout the Second Empire that legitimate expres- sions of self-determination by peoples ready to assume their own governance should not be opposed by force. If the legal power of the United Kingdom Parliament to control this process has been transferred to the Dominions, any government in a Dominion claiming to possess this power must logically be fettered by this convention of restraint. In short, any secession by an Australian State or Canadian Province, which constitutes a true manifestation of an independent and mature self-determining popular will cannot be resisted constitutionally by force. On the other hand, because the organic definition of sovereignty disassociates the definition of popular sovereignty from any particular territory, it might be legitimate to resist a secession which involves

216. Further on this point see F M Greenwood "The Legal Secession of Quebec-A Review Note" (1978) 12 UBCLR 71; D Matas "Can Quebec Separate?" (1975) 21 McGill LJ 387. See also the Ndlwana case supra n 28 which takes a similar view. Cf Craven c 4 and 7. For a wider overview of secession movements and their relevance to Australian secession see A Mizen The Posslble Secession of and Creation of States under the Commonwealth of Australia Constitulzon Act, (unpublished B Juris(Hons) thesis (UWA) 1975). 217. Some Australian Aborigines, led by Michael Mansell and Clarrie Isaacs, have recently taken this step, the significance of which has been at best under- appreciated by the Australian media. Note also the use of the referendum for the former purpose in Quebec in 1980. Just as Lyons had done in 1983, Trudeau promised constitutional reform during the Quebec referendum over "sovereignty-association", a euphemism for secession. Unlike the West Australians, the Quebecois swallowed the bait, only to be cruelly disappointed. See infra pp 306-309. 306 WESTERN AUSTRALIAN LAW REVIEW WOL. 20

either a claim to excessive territory or the subjection of a minority within the larger seceding group. Hence was claimed the right of the Union to defend the blacks during the secession of the American South. The right of the English Parliament to defend the blacks during the Rhodesian secession of 1965 was similarly based. Quebec's attempts to secede may well face a claim by the Canadian Government that it will intervene to protect the Indian and Inuit Peoples, as well as the rapidly disappearing English minority in Montreal. The Australian people may have united in an "indissoluble" Com- monwealth. Scholarly politicians, such as Sir Robert Garran, may have invoked the Texas v White218principle to deny the right of unilateral secession.219But the Commonwealth is soluble. The Imperial Parlia- ment could have at one time loosed the bonds; the Australian States may well have this power now. But even if not, should Australia become a House Divided, should the Australian People become two Peoples, Imperial tradition dictates that in matters of liberty, substance must never be the slave of form.

Western Australian Secession: Implications for Quebec

The situation in Quebec at present is one provocation for the writing of this article. The Canadian Constitution was originally designed to avoid the problem of secession which the Americans had experienced just before Confederation in 1867.220However, indissolubility has dissolved in the face of the self-determinationprinciple in the twentieth century. The right to secede from any federation, including the Cana- dian federation, should not be denied nor obstructed by force. Where the secession is based not only upon the inherent freedom of a people, but also upon a breach of their historical rights, it becomes an even more compelling claim. In the case of Quebec, the Supreme Court of Canada endorsed a vision of popular sovereignty that permitted the transcendence of the claim of the Quebecois to veto fundamental changes to the Canadian Constitution. The substantial measure of provincial consent which the Patriation Reference required as a conventional precondition to the

218. Supra n 145. 219. Supra nn 86 and 145. 220. MacDonald supra n 27. TWO NATIONS, TWO DESTINIES federal request to Britain for constitutional patriation was relied on by both Ottawa and London as authorizing steps to be taken without the concurrence of Quebec. The Supreme Court of Canada would later confirm that the alleged veto was illu~ory.~~ This was the great defect in the Canadian patriation process. The definition of the Canadian gnmdnonn, that most fundamental of means and mechanisms by which the sovereign will of Canadians can be exercised, was arguably wrong. And it was wrong for the same reasons that the Report of the Joint Select Committee on the Western Austra- lian Petition was arguably wrong. Canada in 1982, and indeed in 1867 and 1763 was at least two Peoples, not one; the Quebec veto has a sound historical pedigreem The Supreme Court of Canada overlooked the bifocal nature of the countrfs European heritage in its attempt to define the new grundnorm, and concentrated its analysis on the institutional features of federalism. Thus the Patriation Reference opposed the tyranny of the central Parliament, and requmd that the provinces be permitted to speak on so hndamental a matter; the Canadian popular will was better reflected through the prism of federalism. The Court did not walk through the rarefied mountain air of constitutional formalism, and the conventions of the Statute of Westminster. It moved closer to sea level, occupying the hd of institutional federalism, confiingthat the political concept has an intelligible core cognizable by a court. Rut it did not walk down into the valley amongst the people. It ignored the fad that Canada is more than one people, and that the structure of federalism does not mirror the popular structure of the country. It did not ensure that the fhdamental institutional changes it was asked to mnsider reflected the voice of all of Canada's peoples. It was content that the changes be demanded in the institutional voice of federalism. In so doing, it allowed the English provinces to band together in order to sweep away the objections of not only French but Native Canadians.

221. The notion that the Patriation Reference formula, which required substantial provincial consent to constitutional change, necessitated Quebec's approval of alterations to the (UK) British North America Act 1867 in all cases where its powers as a province might be affected (ie that there was a "Quebec Veto"), was rejected in Attorney-General for Quebec u Attorne.y-General for Canada (1982) 140 DI,R (3d) 385. For a comment, see PeLter "Maitre Chez Who? The Quebec Veto Reference" (1984) 6 Sup Ct LR 387. 222. MacDonald supra n 27. 308 WESTERN AUSTRALIAN LAW REVIEW LVOL. 20

In this sense, the patriation exercise became once again tyrannical; the institutions of change did not speak with all of the voices of Canada's constituent popular communities, but instead only in a single tongue: English. For in the end, constitutional change is only meaning- ful if popular; it is the act of the people in destroying their institutions and constructing new ones. If the institutions simply engineer their own change, or if the all of the inhabitants of the valley are not part of the ritual on Parliament Hill, constitutional change becomes at best mean- ingless, and at worst dictatorial. The Supreme Court of Canada failed to fully include the peoples of the country in its attempt to define the Canadian grundnorm. In so doing, it laid open the path to exploitation. One of the Canadian peoples seized on the institutional definition of the grundnorm laid out by the court and proceeded to impose its own definition of the country on the others. That has certainly been Quebec's argument ever since. It has argued that there is a popular, and not merely a federal, grundnorm which recognizes the existence of different peoples in Canada, and which in consequence concedes to the French Canadians, as represented by their institutional agent, the province of Quebec, a right to veto Constitutional change. Quebec has remained undaunted by the court's declaration that its position is wrong. The Court, it has said, violated the conventions of the Constitution; the Western Australians had said the same of the High Court decision in the Engineers case fifty years before. The Meech Lake process is the recognition of the validity of Quebec's claim; it is an attempt to vindicate (to a limited extent) the popular grundnorm of the country. Should the Meech Lake process fad, it arguably would not be open (constitutionally) to any remaining por- tions of the Canadian polity to oppose a clainl by Quebec to secede, but merely to protect the sovereign rights of those who may be affected by its separation. The duty of both Quebec and Canada in that situation will be to solve the problem with reason and not with force. This very position was in fact afFiied by the Canadian Parliament when it supported the Lithuanian right to secede from the Soviet Union. Just as with Lithuania, Quebec should be free to secede and should not be opposed by violence. The only duty of the two communities created by such a secession is to negotiate with a view to ensuring that the legitimate and self-determining rights of both communities and other affected parties are respected in the course of the division. As the Western Australian secessionists once claimed, the concept of alle- 19901 TWO NATIONS, TWO DESTINIES 309

giance to the Crown, and the Second Empire tradition we have inher- ited, mandate such a cour~e,~ 111. CONCLUSION "1 know not what course others may take; but as for me, give me liberty or give me death!"m These words immortalized Patrick Henry, the American colonial secessionist. Watson too waged a valiant campaign for liberty but failed. For that he has died in the Australian imagination. Yet he deserves to take a place in the pantheon of Australian political luminaries. While we may not today agree with his aims, he fought with a zeal and style that elevates him far above the ordinary politician. And his achievement is no less remarkable for its incompleteness. With extraordinary celerity, he took his movement closer to its goal than anyone dreamed possible. Had the Depression been more reluctant to release its grip on Australia, he might well be lionized today as a founder of the Westralian nation. Australia walked much closer to the precipice of disintegration in the Great Depression than the present generation, integrated by the intervening ascendence of air travel and instant telecommunications,

223. See the Lovekin quote set out in the text accompanying n 86, which echoes these sentiments. As for the Meech Lake process, it was awash in irony. The Meech Lake Accord was struck between the provinces and the federal government in 1987 in an attempt to redress the failure of the Patriation Reference, and the patriation process generally, to adequately dehe the grundnorm of the country's constitutional structure. It attempted to enshrine the principle that Canada was an amalgam of two founding peoples, in order to induce Quebec to ratify the patriation process. In so doing, it totally excluded the native peoples of Canada from the process, surely the third, if not the first, of the Canadian peoples. Moreover the process itself was utterly autocratic; the Accord was struck by politicians in secret meetings and without mass popular involvement. This turned out to be its downfall. As the expiry of the three year deadline for ratification of the Accord by provincial legislatures approached, the English, especially in Newfoundland, turned on the process as elitist. Moreover, the Canadian Indians found, as an accident of Manitoba electoral politics, that they, through the lone Indian MLA in the Manitoba legislature, held the balance of power in that assembly, and effectively held the power to veto the Accord. They had the courage to use it. 224. Patrick Henry, speech before the Virginia Convention held in Richmond between 20-26 March 1776, as reproduced from memory by William Wirt, who was present. The speech is reproduced in full in M Ellis, L Pound, G W Spohn (eds) A College Book ofAmerican Literature (New York: American Book Co, 1939) Vol 1, 279. 3 10 WESTERN AUSTRALIAN LAW dares to contemplate. Nevertheless, the secession movement is worth recall for many reasons, and, as we stand on the verge of perhaps a similar economic climate, it is worth noticing that the Case For Secession contains many grievances that continue to have contempo- rary relevance. Whatever politicians may declare, the smouldering embers of secession must be an enduring concern of any federation. On the other hand, the report of the Joint Select Committee offers the country something much more positive. In 1986, Australian politicians tried to manufacture a symbol of Australian sovereignty with the Australia Ads. The exercise involved crawling back to Mother Britain to 'request and consent' to one more Imperial Act, as if freedom were Britain's to withh~ld.~It is an ignoble set of documents, a creation of politicians and constitutional lawyers playing games with the formal rules of parliamentary sovereignty. Yet fifty-one years before, the British had already affirmed all that which the Australia Acts later sought to declare. The Report of the Joint Select Committee is a testament to the death of an Empire, a signpost on the route to Canadian constitutionalpatriation, but more importantly a monument to the birth of a nation, an affirmation of the full sovereignty of the Australian People. It perhaps as much as any other marks the moment of Austra- lian independence, and its thirteen paragraphs arguably deserve to take a place alongside the Australian Constitution itself as one of the central landmarks of Australian political development this century. Before the Report there was doubt; the Petition could not have proceeded if eminent scholars did not disagree about the possibility of the independent exercise of Imperial power over Australia, and the Joint Select Committee would not have been stuck if matters were clear cut. &r the Report, there has been no doubt. While landmarks in the evolution of dominion sovereignty are inevitably indistinct, I would venture to offer that the Report of the Joint Select Committee on the Secession Petition of the State of WesternAustralia is the Declaration of Australian Independence. Nevertheless, a typically Australian Ad of self-affirmation it was, coming, as it did, out of the mouths of the British.

225. While there is parallel Commonwealth legislation, the scheme still depends on British consent.