Chapter 29 - The Statute of Westminister

Posted in The Forgotten People

This week we have had a very interesting debate at Canberra about the adoption of certain sections of the Statute of Westminster, which was passed through the British Parliament in 1931, but certain detailed provisions of which do not apply to Australia unless adopted by the Australian Parliament.

The problems involved are the subject of a good deal of misunderstanding, and a few minutes devoted to their explanation may therefore be useful.

Even before the last war the story of the growth of the British Empire from Great Britain itself to its colonies, with those colonies subsequently becoming self-governing colonies, and then self-governing dominions, made up the most fascinating example of constitutional growth in the history of the world.

Long before the last war, self-government in the dominions had been fully recognized by the mother country. Theoretically, the British Parliament could pass laws for any dominion, but in practice there was no possibility of this being done except at the request of the dominion.

During and shortly after the last war, however, there was an acute development in the theory of Empire relations. This development was to a large extent the result of pressure from such dominions as Canada and South Africa, each of which had its own local racial problem and each of which, for various reasons, was more disposed to require a written definition of its position than were either ourselves or the New Zealanders.

In the upshot, in 1926, at the Imperial Conference of that year - at which we were represented by Mr Bruce - the whole problem was discussed and a formula set out in what is now called the Balfour Declaration, the best-known passage in which is that describing the status of the United Kingdom and her dominions:

There 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 though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations.

Subsequently a committee was set up to conduct certain technical examinations into some of the legal results of this declaration. That committee reported to the Imperial Conference of 1930, which recommended that a declaratory act of Parliament on the whole subject should be passed by the Parliament of the United Kingdom.

What subsequently became the Statute of Westminster was then drafted, but it was agreed that it should not be introduced into the Parliament at Westminster until it had been requested and consented to by the various dominion parliaments. The necessary resolutions were in fact submitted to the Commonwealth Parliament in 1931, being carried by both Houses, and the Statute of Westminster was then, at the end of 1931, enacted.

Five sections of the Act, dealing with such matters as the power of the Commonwealth Parliament to pass laws inconsistent with British statutes - provided of course that they are otherwise within the power of the Australian Parliament - and the right of the Commonwealth Parliament to give extra-territorial effect to its laws, were not to operate in Australia, New Zealand or Newfoundland unless adopted by the parliament of any such dominion.

Now, a great may people appear to think that adopting these relatively minor provisions in some way affects the status of Australia and its relation to the other countries of the British Empire, and in particular to Great Britain.

This is not so. Those portions of the Statute of Westminster which concern themselves with the status of the dominions became law at the end of 1931, and needed no adoption by Australia beyond the resolutions which were carried eleven years ago.

The preamble to the Statute of Westminster, which has a declaratory character, is already law. It became law eleven years ago, and nothing we can think or say or do now can affect it.

It establishes in terms the proposition that "The Crown is the symbol of the free association of the members of the British Commonwealth of Nations", and that "They are united by a common allegiance to the Crown". These, following upon the Balfour Declaration of 1926, are the words which deal with the relations of the countries of the British Empire. They were not up for consideration this week because -and I want to emphasize this point - they were passed eleven years ago at the request of all the dominions, and whether we like it or not they operate today.

I may say at once that I have two great quarrels with the language that was used. In the first place, I think that to endeavour to put into written form a relation part of whose strength rested upon its very vagueness and want of definition, was a cardinal blunder. There was a living spirit, and we endeavoured to imprison it within the four corners of a legal formula. My second criticism is that the legal formula was itself so ambiguous that it has ever since given rise to disputes of interpretation, and may give rise to even more serious ones in the years to come.

A good illustration of this is to be found in the quite honest difference of opinion which exists as to the way in which Australia makes war. The Attorney-General in the present Government went to great pains, when Japan came into the war, to follow a procedure which would indicate that His Majesty the King was declaring war on Japan in respect of Australia on the advice of his Australian ministers. This seems to me to be based upon the view that, though the King makes peace and makes war, he could be at war with Japan in relation to Great Britain and at the same time, if his Australian Ministers had happened so to advise, he could be at peace with Japan in relation to Australia, just as he is, on the same theory, at peace with Germany in relation to Southern Ireland.

Quite candidly, this theory is beyond me. I do not understand how one king can be at peace and at war at the same time in relation to the same foreign power, unless we, so to speak, carve him up into six kings: The King of England, the King of South Africa, the King of Australia , and so on - a notion which was strongly maintained by General Hertzog in some conversations I had with him in 1935. But it seems to me to be a complete denial of the proposition that the Crown is the symbol of association, or that we have a common allegiance to the Throne. Quite frankly, I do not accept the theory that a dominion can be a neutral in a British war and at the same time remain within the British Empire.

Neutrality means secession. If this were not so, then the association between the various portions of the Empire, imposing no liabilities, would be no more than a friendly gesture, and would certainly stop far short of being even an ordinary military alliance.

I cannot, in the time open to me, elaborate this, but I hope that I have sufficiently conveyed to you what I have in mind.

But all these questions, which concern themselves with vital matters, turn upon what was done in 1926 and in 1930-31, and are in no way affected by the relatively minor technical questions that we have just been considering at Canberra.

Thus it is that, although I have, as you will have gathered, the strongest views on the question of Empire relations, I can see no reason at all why an otherwise perfectly valid Australian law should become invalid because somebody manages to dig up an old English statute which is inconsistent with it. Nor can I see why the power of this country to make laws having extra-territorial operation should not be put beyond doubt. Why, the whole possibility of enforcing conscription may depend upon it. Nor can I see why doubts about such matters as the validity of our shipping laws and of our Admiralty jurisdiction should not be resolved.

These are all relatively minor matters. They are, as one might say, the mere incidentals of the great decisions which were taken years ago.

We in the parliamentary Opposition thought that, having regard to the misunderstandings which do arise on this question, it would have been wise to impose some delay upon the passing of the Adoption Bill, but the Government did not agree.

The whole purpose of this broadcast has been to endeavour to put the matter in its right perspective. It is essentially a Bill of relatively minor importance. It derives its chief interest from the fact that it refers us back to the controversies of 1931 and reminds us, if we are given to thinking about such problems, that in our Empire relations we have by no means reached either finality or certainty.

9 October, 1942