AW State Succssion

Introduction 0:07 welcome back to the Constitutional 0:09 Claren this video is another response to 0:12 viewer questions first about the uh 0:15 history of Western Australia's attempt 0:16 to secede from Australia and why it 0:19 didn't work in the 1930s and secondly 0:21 about whether or not there's any ability 0:24 for a state or indeed people to seced 0:27 from Australia Today the Commonwealth 0:29 con Constitution does not contain a 0:32 provision that permits secession that is 0:34 a state leaving the Federation and 0:36 becoming independent of Australia the 0:38 only reference made to it is in the 0:41 preamble to the British act the 0:43 Commonwealth of Australia Constitution 0:45 Act 0:46 1900 which also contains our 0:49 constitution in section N9 so that 0:52 British act has a preamble and it has U 0:55 sections 1 to8 which we call the 0:57 covering Clauses which you'll get a bit 0:59 of mention here uh along with our 1:02 constitution in section 9 now the Western Australia 1:05 preamble to that British act describes 1:08 the establishment of quote One 1:12 indisoluble Federal Commonwealth under 1:14 the crown 1:16 unquote as I've explained before in 1:18 other videos a preamble is not legally 1:21 binding it explains the background and 1:24 the context in which a statute or a 1:26 constitution was enacted and sometimes 1:29 it indicates it's the purpose to which 1:31 it was directed it can be used by a 1:34 court in seeking to resolve ambiguity in 1:38 the provisions of that Constitution or 1:40 statute hence an indication in the 1:42 Preamble that the Federation was 1:44 intended to be 1:46 indisoluble would likely influence a 1:49 court in interpreting provisions of the 1:51 Constitution that deal with things like 1:53 the formation of states and the 1:55 alteration of State limits so that they 1:57 do not accommodate secession 2:00 there was also some discussion during 2:03 the convention debates of the 1890s 2:05 about whether to permit secession the 2:08 American Civil War was still within the 2:11 living memory of the people who 2:13 participated in these debates and 2:15 because of the horrors of that war most 2:18 of them took the view that secession 2:20 should not be 2:21 permitted Western Australia was from the 2:24 very beginning a reluctant participant 2:27 in 2:27 Federation when the Commonwealth 2:30 Australia Constitution Act was passed by 2:32 the Westminster parliament in early July 2:35 1900 Western Australia still hadn't 2:38 agreed to join covering clause three 2:42 provided for Queen Victoria in issuing 2:45 the proclamation that would create the 2:47 Commonwealth of Australia as a 2:49 federation to include Western Australia 2:53 in that Proclamation if she was 2:56 satisfied that the people of Western 2:58 Australia had agreed to join 3:00 this happened after a referendum was 3:02 passed in Western Australia on the 31st 3:05 of July 1900 approving Western Australia 3:09 joining the Commonwealth as an original 3:12 state 3:14 69.4% of Western Australian voters voted 3:17 yes although a lot of that support was 3:20 actually in the gold Fields rather than 3:22 in Perth and the rural and other 3:25 Regional 3:26 communities the economy of Western 3:28 Australia was also different from the 3:30 economies of the other Australian 3:32 colonies it was almost completely 3:34 reliant on Agriculture and Mining its 3:37 tax revenue came from excise and customs 3:41 duties which as a consequence of 3:43 federation were transferred to the 3:46 Commonwealth it was also affected quite 3:49 seriously by Commonwealth tariff 3:50 policies because it had almost no 3:53 manufacturing base of its own it 3:56 therefore needed to import all its equip 3:59 equipment for farming and Mining but 4:02 because the Commonwealth tariffs made 4:04 otherwise cheap overseas Imports very 4:08 expensive it was forced to buy this 4:10 equipment from other Australian States 4:13 at a slightly cheaper but still very 4:16 expensive price which of course reduced 4:18 its own capacity then to compete in its 4:21 export of its own 4:23 Commodities Western Australia was hit 4:25 particularly hard by the Great 4:27 Depression in the late 1920s 4:30 strengthening an existing secession 4:32 movement as it was very unlikely that 4:36 the Commonwealth Constitution would be 4:38 amended to permit its secession The 4:41 Advocates of secession in Western 4:42 Australia wanted the British Parliament 4:45 to legislate to take back Western 4:47 Australia as a Crown Colony and this 4:51 issue was therefore lurking behind the 4:54 scenes during the negotiation of the 4:56 statute of Westminster 1931 5:00 this British statute was intended to 5:02 give legal effect to the earlier 5:04 political recognition from 1926 and 1930 5:09 at the Imperial conferences that Britain 5:13 and the self-governing dominions such as 5:16 Australia were equal in status and that 5:20 the crown had become 5:21 divisible the statute of Westminister 5:24 gave power to the dominions to repeal or 5:28 amend British laws that had previously 5:32 bound those dominions by Paramount Force 5:35 meaning that the dominions couldn't 5:37 legislate to amend or repeal the way 5:40 those British laws applied to 5:42 them the statute of Westminster also The problem for Australia 5:45 said in section four that the 5:48 Westminster Parliament could not 5:50 legislate for a Dominion as part of its 5:52 law unless it was declared in that 5:55 legislation that the Dominion had 5:57 requested and consented to its 6:00 enactment the problem for Australia as a 6:03 federation was that the Commonwealth 6:05 Constitution was legally entrenched in 6:08 Australia precisely because it was part 6:12 of a law that applied by Paramount 6:15 Force if the statute of 6:17 Westminster allowed the Commonwealth 6:20 Parliament to amend or repeal any 6:23 British laws that appli by Paramount 6:25 Force including the Commonwealth of 6:26 Australia Constitution Act then that 6:30 would have undone the entrenchment of 6:32 the Constitution and potentially 6:34 destroyed the 6:35 Federation so special savings Provisions 6:38 were included in sections 8 and nine of 6:41 the statute of Westminster to preserve 6:44 the Commonwealth Constitution and the 6:46 Commonwealth of Australia Constitution 6:48 Act in which it sits the states also 6:51 managed to get the British to insert 6:54 section 9 subsection 2 into the statute 6:57 of Westminster it said that Commonwealth 7:00 consent was not necessary for the 7:03 enactment of British legislation with 7:05 respect to any matter within the 7:08 authority of the states of Australia not 7:11 being a matter within the authority of 7:13 the Commonwealth Parliament or 7:16 government but as long as it would have 7:19 been in accordance with prior 7:21 constitutional practice for the 7:23 Westminister Parliament to make that law 7:25 without Commonwealth 7:27 concurrence now Western austr Australia 7:30 did that because it thought that this 7:32 would allow it to get the British 7:34 Parliament to pass a law concerning it 7:37 seccession from Australia without the 7:40 need to get Commonwealth 7:42 agreement however it would have to 7:44 establish that a it was a matter solely 7:48 within State Authority not Commonwealth 7:50 Authority and B that before the 7:54 enactment of the statute of Westminster 7:56 it would be consistent with 7:58 constitutional ractice for the 8:00 Westminster Parliament to make such a 8:02 law without Commonwealth 8:05 agreement now not long after the statute 8:08 of Westminster was enacted the 8:10 secessionist movement really took off in 8:12 Western Australia the Nationalist 8:15 government of James Mitchell began to 8:17 support it and got the secession 8:20 referendum act 8:22 1932 passed through the parliament of 8:24 Western Australia in December of that 8:27 year to provide for the whole holding of 8:30 a referendum on the issue now 8:32 technically today we would call this a 8:35 pleite not a referendum because it 8:37 didn't itself amend the state 8:39 constitution or even the Commonwealth 8:41 Constitution but nonetheless because 8:43 they call it a referendum uh I will too 8:46 for the purposes of this video the labor 8:49 party bitterly opposed session so the 8:52 idea of secession did become a highly 8:55 partisan issue the referendum was held 8:58 on the 7th of April 9:00 1933 on the same day as the state 9:04 election the people were asked this 9:07 quote are you in favor of the state of 9:10 Western Australia withdrawing from the 9:12 federal Commonwealth established under 9:15 the Commonwealth of Australia 9:16 Constitution Act Imperial question mark 9:20 unquote they were also asked whether 9:22 they wanted a convention to be summoned 9:24 to propose alterations to the 9:26 Commonwealth 9:27 Constitution while the second question 9:30 on a constitutional convention was 9:32 defeated the question on seccession was 9:35 successful with 9:37 138,139 9:42 voting against so about 23 of the people 9:47 who voted were in favor of 9:50 secession curiously on the same day 9:55 however Mitchell and his nationalists 9:57 who had supported s session were 10:01 defeated and the labor party was elected 10:04 to government so this left the new labor 10:08 Premier Philip Kia in a rather peculiar 10:10 position because he was then responsible 10:14 for giving effect effect to a secession 10:16 referendum which he and his government 10:18 did not Secession Act 1934 10:19 support Kia decided that he had to give 10:22 effect to the wishes of the people so 10:24 the secession act 1934 was passed 10:27 approving the publication of a case for 10:32 secession which was a document prepared 10:34 by a committee of the parliament it also 10:37 authorized a delegation to petition the 10:39 Westminster Parliament to enact a law 10:42 that amended the Commonwealth of 10:43 Australia Constitution Act to give 10:46 effect to the withdrawal of Western 10:47 Australia from the federal Commonwealth 10:49 of Australia it would establish Western 10:52 Australia as a distinct self-governing 10:55 colony of the British Empire to be 10:57 called the Dominion of Western Australia 11:00 and give it the same constitutional 11:02 status as the Commonwealth of Australia 11:04 you can read the full details of the 11:06 petition because it's uh a schedule to 11:10 the secession act 1934 which you can 11:12 find on uh any database that lists 11:14 Western Australian 11:16 legislation uh it also set out all of 11:18 Western Australia's Grievances and its 11:20 reasons for wanting 11:22 secession the Commonwealth government 11:25 responded by publishing the very 11:27 detailed uh reply named the case for 11:30 union now I did manage to pick up a copy 11:32 of this once from a secondhand Bookshop 11:34 so very pleased with that acquisition uh 11:36 it set out not only the political 11:39 arguments but also the evidence refuting 11:42 many of the economic arguments as is 11:45 commonly the case uh with claims being 11:48 made from secession or withdrawal from a 11:51 group like brexit for example normally 11:54 only the perceived advantages and 11:57 benefits are counted by its 11:59 opponents the Commonwealth case pointed 12:03 to the added costs and losses concluding 12:06 that Western Australia would have to 12:08 raise taxation significantly as a result 12:11 of secession it observed 12:14 quote this completely dissipates the 12:17 mythical benefit of 2, 12:21 332,000 put forward in the Western 12:23 Australian case it is not a question of 12:26 estimating what Western Australia would 12:28 G financially by secession it's a 12:32 question of placing a reliable figure on 12:34 what Western Australia must inevitably 12:37 lose 12:38 unquote but in the end the seccession 12:41 question didn't come down to its merits 12:44 it was a matter of law the Westminster 12:48 Parliament established a joint select 12:50 committee on the 23rd of February 12:52 1935 to consider whether a petition from 12:55 Western Australia ought to be received Joint Select Committee 13:00 it heard evidence from Council from both 13:02 Western Australia and the 13:04 Commonwealth section 10 of the statute 13:07 of Westminster 13:09 1931 said that sections 2 3 4 5 and six 13:14 shall not apply to Australia unless 13:18 adopted by Australia and at that stage 13:21 in 1935 Australia had not adopted the 13:24 statute of Westminster it did so later 13:26 in 1942 with retrospective effect back 13:30 to the beginning of the war section n of 13:33 the statute of Westminster however did 13:35 apply but the Dominion's office and the 13:38 British Crown Law Officers thought it 13:41 was irrelevant because section 13:44 92 which you might remember is the one 13:46 the Western Australians thought was the 13:48 key to give them secession they said 13:51 well wait a minute section 13:53 92 concerns exclusively State matters 13:57 where there's no existing constitutional 13:59 practice to gain the concurrence of the 14:01 Commonwealth before the British would 14:04 legislate even without the application 14:08 of section four of the statute of 14:10 Westminster which is the one that 14:12 reaffirmed that the British Parliament 14:14 would not pass laws extending to a 14:16 Dominion without its request and consent 14:19 such a constitutional practice already 14:22 existed and was mentioned in the 14:25 preamble to the statute of 14:27 Westminster hence while technically the 14:30 Westminster Parliament could legally 14:33 legislate for Western Australia 14:36 seccession it was not consistent with 14:38 constitutional practice for the 14:41 Westminster Parliament to do so without 14:43 the concurrence of the Commonwealth 14:45 government and Parliament the UK joint 14:48 select committee noted that there was no 14:51 power in the Commonwealth Constitution 14:53 for a state to seced the Constitution 14:56 could be amended by a referendum 14:59 but the committee considered that a 15:01 referendum permitting secession would 15:04 conflict with the covering Clauses in 15:06 the Commonwealth of Australia 15:07 Constitution Act which themselves could 15:10 not be changed by Australia at that time 15:14 the committee concluded that only 15:16 British legislation could provide for 15:19 quote the dissolution of the 15:21 Commonwealth or the subsession of any of 15:24 its constituent Parts unquote the 15:27 committee considered whether secession 15:29 was a matter concerning Western 15:31 Australia alone or whether it was also a 15:34 commonwealth matter as Western 15:36 Australia's request for seccession would 15:38 have involved changes to the 15:40 Commonwealth Constitution the committee 15:43 concluded that the request of the 15:44 Commonwealth Parliament and government 15:46 was required it decided that the 15:49 petition could not properly be received 15:52 as it would not be proper for the United 15:55 Kingdom Parliament to act without the 15:57 request of the common of Australia 16:00 conveying the clearly expressed wish of 16:03 the Australian people as a whole in the 16:06 face of this rejection Western Australia 16:09 gave up its Quest as the Commonwealth 16:12 would not agree and the United Kingdom 16:14 Parliament would not help there was the 16:17 odd suggestion of rebellion and Civil 16:20 War but they were quickly quashed by 16:23 wiser heads now for those of you wanting 16:25 to know more about it uh there's a very 16:28 good book on it by Greg Craven uh which 16:30 he wrote some time ago you might be able 16:32 to pick it up now in a secondhand 16:34 bookstore or perhaps in a library but 16:37 it's probably out of print by Today 16:39 now okay so what about today could a 16:44 state secede from Australia today now 16:47 the British method for achieving 16:49 seccession has now gone with the 16:51 enactment of section one of the 16:53 Australia acts 1986 it provides that 16:56 laws of the Westminster Parliament can 16:59 no longer be made to extend as part of 17:02 the law of Australia so no change that 17:06 the Westminster Parliament made to the 17:07 Commonwealth Constitution would have any 17:10 legal application in Australia 17:13 Today the Commonwealth Constitution 17:15 still provides no procedure for 17:18 secession while section 123 provides a 17:22 method for changing the limits of a 17:24 state that is its borders this does not 17:27 provide for the exclusion 17:29 of any part of that state from the 17:33 Commonwealth if that part were within an 17:35 original state and all the existing 17:38 states were original states then it 17:41 would retain its constitutional status 17:43 as part of Australia including the right 17:46 to representation in the Commonwealth 17:48 Parliament unless the Constitution was 17:51 amended can the Constitution be amended 17:54 to provide for secession what about that 17:57 clash with the covering clauses and the 17:59 word indisoluble in the Preamble well 18:02 the Preamble as I said earlier does not 18:04 have a legally binding effect but it 18:06 does have an interpretive value the 18:09 covering Clauses including the 18:11 definition of original states and states 18:14 can now be amended or repealed through 18:16 the use of section 15 of the Australia 18:18 acts altering their protection by the 18:21 statute of Westminster so yes there is a 18:24 means through the combination of a 18:27 referendum and coop ative state and 18:29 federal legislation amending the 18:32 covering Clauses that could legally 18:35 achieve secession any referendum would 18:39 require the approval of a majority of 18:41 Voters overall a majority of Voters in a 18:45 majority of States as well as a majority 18:49 of Voters in the seceding State due to 18:52 the operation of the penultimate 18:54 paragraph of section 128 of the 18:57 Constitution and as you can INE the 18:59 chances of achieving this are infinitely 19:02 small unilateral secession by a state 19:06 would not be legally valid any 19:09 legislation enacted by a state to 19:11 provide for its secession would be 19:13 invalid because of its inconsistency 19:16 with the Commonwealth 19:17 Constitution but unilateral secession 19:20 could in practice be effective to the 19:22 extent that Australia chose not to 19:25 engage in a civil war not to send in the 19:27 tanks it would be in effect a matter of Secessionists 19:32 politics what about those people who 19:34 claim that they've seceded from 19:36 Australia uh you know the ones they tend 19:38 to wear purple robes and call themselves 19:40 prince and princess have they actually 19:44 validly legally seceded well the answer 19:47 is no sometimes it's humid to the extent 19:50 that the authorities can't be bothered 19:52 wasting time and money on them but often 19:55 the law is enforced against them for 19:58 example in the 1999 case of F and 20:01 Victoria uh Mr F's argument that he 20:04 seceded from the state of Victoria was 20:06 rejected as an abusive process the court 20:09 of appeal pointed out that Mr F resides 20:13 within the boundaries of Victoria and 20:15 he's therefore subject to the laws of 20:17 Victoria just like everybody else who's 20:19 there in Harrison mad in 1993 a 20:23 Queensland judge rejected a claim of 20:26 secession as a Sy assertion made to 20:30 avoid Financial Obligations the judge 20:33 criticized the mads for putting 20:35 themselves Above the Law and he regarded 20:38 their actions as an insult to ordinary 20:41 Australian citizens who have 20:43 considerable difficulty in paying their 20:45 debts but still obey the 20:47 law even the most famous of Australia's 20:51 pseudo secessionists Leonard casley who 20:54 called himself Prince Leonard of H did 20:57 not have their claims to SU session 20:58 accepted by the courts these claims were 21:01 described by a high court judge in 2007 21:05 as quote fatuous frivolous and vexatious 21:09 unquote a Western Australian Supreme 21:12 Court Judge concluded in 21:14 2017 that casis claimed to be Sovereign 21:17 of Hut River Province and that Western 21:19 Australian courts had no jurisdiction 21:21 over him had no legal Merit or substance 21:25 the judge said anyone can declare 21:28 themselves a sovereign in their own home 21:31 but they cannot ignore the laws of 21:33 Australia and not pay 21:35 tax in the end the claim to sovereignty 21:38 was dropped in 2020 and the land what 21:42 was previously known as The Hut River 21:44 Province had to be sold to pay back the 21:47 tax debt that was owed there are plenty 21:50 of other cases in the courts where 21:52 claims to secession have been rejected 21:54 and the laws of the Commonwealth and the 21:56 states have been enforced 21:59 thank you for watching the 22:00 Constitutional Clarion I hope that this 22:03 helped you understand the rather tricky 22:05 and sensitive issue of session a little 22:07 bit better and as always I look forward 22:10 to seeing you next time goodbye