THE DE-COLONISATION OF THE AUSTRALIAN STATES by ANNE TWOMEY A THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF NEW SOUTH WALES APRIL 2006 2 ABSTRACT This thesis examines the status of the Queen in Australia in relation to the Australian States and the effect upon it of the enactment of the Australia Acts 1986. It uses hitherto confidential government documents to expose the true relationship between the United Kingdom, the Crown and the States and challenge prevailing assumptions. The thesis establishes that before 1986 the United Kingdom played a substantive, rather than a merely formal, role in the constitutional relationship between the States and the Crown. The ‘Queen of Australia’ was confined in her role to Commonwealth, not State, matters. The ‘Queen of the United Kingdom’ continued to perform constitutional functions with respect to the States, which were regarded as dependencies of the British Crown. This position changed with the enactment of the Australia Acts 1986 (Cth) and (UK). This thesis analyses the Australia Acts, assesses the validity of their provisions and contends that the Australia Act 1986 (UK) was necessary for legal and political reasons. The thesis concludes that the Australia Acts, in terminating the residual sovereignty of the Westminster Parliament with respect to Australia, transferred sovereignty collectively to the components of the federal parliamentary democratic system. Consistent with this view, it is contended that the effect of the Australia Acts was to establish a hybrid federal Crown of Australia under which the Queen’s Ministers for each constituent polity within the federation can advise her upon her constitutional functions with respect to that polity. TABLE OF CONTENTS Acknowledgements……………………………………………………………………...i Notes on sources and references………………………………………………….……..ii Publications and Confidentiality…………………………………………………….….vi Abbreviations……………………………………………………………………….….vii CHAPTER 1 The relationship between the Australian Colonies and the British Crown……..…….....1 CHAPTER 2 The effect of federation on the relationship between the States and the British Crown.21 CHAPTER 3 The Statute of Westminster 1931 and its consequences for the States………………....65 CHAPTER 4 The relationship between the States and the British Crown between 1931-86…….…106 CHAPTER 5 The negotiation of the Australia Acts 1986…………………………………..……….203 . CHAPTER 6 The Australia Acts 1986 – Enactment, Validity and Continuing Status……………...281 CHAPTER 7 The ‘Queen of Australia’ and the States……………………………………….…...…357 APPENDIX A Statute of Westminster 1931…………………………………………………….…….403 APPENDIX B Australia Act 1986…………………….…………………………………….………...407 . APPENDIX C Select list of persons……………………………………………………………....…..414 BIBLIOGRAPHY…………………………………………………………….……....418 CASE LIST……………………………………………………………………….…..430 STATUTE LIST……………………………………………………………..………..433 i Acknowledgements Many people and institutions assisted with providing the original material that forms the basis of this thesis. The New South Wales Government gave me access to its files to assist in writing a book on the New South Wales Constitution. The most interesting part of that material concerned the genesis of the Australia Acts. The Western Australian and Tasmanian Governments also gave me full access to their files on the negotiation of the Australia Acts. The Queensland Government gave me access to some files, but could not locate its files on the Australia Acts. Most importantly, the United Kingdom Government gave me full access to its files on the negotiation of the Australia Acts. I am most grateful for the willingness of these governments to open up confidential files at my request. I am also grateful for the assistance of many archival bodies which provided me with assistance, often by increasing my request allowances or collecting material in advance for me when I had only a short period to visit. These bodies include: the New South Wales State Records Office, the Queensland State Archives, the State Records Office of South Australia, the Archives Office of Tasmania, the Public Records Office of Victoria, the Western Australian State Records Office, the National Archives of Australia and the National Archives of the United Kingdom. Various libraries also provided me with assistance, including the New South Wales Parliamentary Library, the Mitchell Library, the National Library of Australia, the State Library of Victoria, and the University of Sydney Law Library, for which I am grateful. Finally, I would like to thank my family, and those who supported my applications for special access to documents, including: Mr Roger Wilkins, Director-General of The Cabinet Office of NSW; the Hon Keith Mason, President of the NSW Court of Appeal; the Hon Leslie Katz SC; Dr Helen Irving; Dr Jim Thomson; Senator Rod Kemp, Minister for the Arts; Senator Chris Ellison, Minister for Justice; the State and Commonwealth Solicitors-General; and my supervisor, Professor George Winterton. ii Notes on sources and references British sources Publicly available records from the former ‘Public Records Office’ (now the National Archives of the United Kingdom) are prefixed with ‘PRO’ before the relevant file number. These records were either viewed on microfilm in the Mitchell Library in Sydney, or viewed in their original form at the National Archives, Kew, United Kingdom in January and July 2005. In addition, the British Government kindly gave me access to government documents that have not yet been publicly released under the 30 year rule. As they have not yet been released, they have not been given a formal file number by the National Archives. Where possible, original file numbers are used as a source of identification, but it should be noted that once these files are made publicly available, they will be given a different file number by the National Archives. In this thesis these files are prefixed with ‘UKG’ (‘United Kingdom Government’). Most are Foreign Office documents, as indicated by FCO. Some are documents of the Prime Minister’s Department, as indicated by ‘PREM’. In one case, the file had no file number at all, so it is identified by its title and years (‘Australian States: Residual Constitutional Links’ 1984-6). All these files were viewed at the premises of the United Kingdom Cabinet Office in Admiralty Arch, London, in January and June 2005. New South Wales sources Files publicly available through the New South Wales State Records Office are given the prefix of ‘NSWSRO’. They were viewed at the State Records Office in Sydney in 2004 and 2005. The following New South Wales government departments and agencies also gave me access to their files on the negotiation of the Australia Acts and the related history of British-State constitutional relations: The Cabinet Office, the Attorney-General’s iii Department, the Crown Solicitor’s Office and the Office of the Parliamentary Counsel. Access to these records was provided in some cases on the condition that the negotiating parties in the intergovernmental negotiations be identified by State, rather than as individuals (on the basis that they were putting forward State positions rather than their own views) and that specific files not be identified. Hence the information obtained from these sources is identified only by the reference ‘NSWGF’ (New South Wales Government Files), and communications are described generically as communications between States or with the Commonwealth (or where relevant, particular offices), rather than identifying the particular individuals involved. These files were viewed in the offices of the relevant Department or agency at various times during 2003-5. Queensland sources The Queensland Government kindly gave me permission to view files concerning the Sir Colin Hannah incident and the Queen of Queensland controversy. The files were viewed in the Queensland State Archives in Brisbane in April 2004. The references to these files are prefixed with ‘QSA’ (Queensland State Archives). Access to files on the negotiation of the Australia Acts was requested but the files could not be located. Access to the papers of Professor Finnis, who was the legal adviser to the Queensland Government, was also requested. Professor Finnis agreed to provide his papers to me, subject to approval being given by the Queensland Government. At the time of submission, approval was still being considered. It is likely that the papers will be available for future publications. Tasmanian sources The Tasmanian Government kindly gave me permission to view its files concerning the negotiation of the Australia Acts 1986 which were less than thirty years old. I also viewed files concerning the Statute of Westminster, the appointment of Governors and relations with the British Government at the Archives Office of Tasmania. This iv material, which was viewed in December 2005, is all prefixed with the abbreviation ‘AOT’ (Archives Office of Tasmania). South Australian sources Files concerning the negotiation of the Statute of Westminster and other relations between the States and the United Kingdom were viewed in the South Australian State Records Office in Adelaide in January 2006. They are prefixed with the abbreviation ‘SRSA’ (State Records South Australia). Victorian sources Files on the relationship between the United Kingdom and Victoria were viewed at the Public Records Office Victoria in March 2006. They are prefixed with the abbreviation ‘PROV’ (Public Records Office Victoria). A request was made for access to