Opinion No. 1767
Subject: COMMONWEALTH OF AUSTRALIA: STATUS AS A SOVEREIGN NATION
COMMONWEALTH’S STATUS AS A SOVEREIGN NATION IN INTERNATIONAL AND INTER-IMPERIAL RELATIONS: COMMONWEALTH’S STATUS AS A PARTY TO PROCEEDINGS IN ENGLISH COURTS: COMMONWEALTH POLICY IN RELATION TO SUBMISSION TO JURISDICTION OF ENGLISH COURTS: PROCEEDINGS TO BE IN NAME OF THE COMMONWEALTH OF AUSTRALIA: ‘CROWN’ IN UNITED KINGDOM LAWS: WHETHER COMMONWEALTH IS ‘CROWN’ FOR PURPOSES OF MARITIME CONVENTIONS ACT 1911 (UK): SOVEREIGNTY OF BRITISH DOMINIONS: STATUTE OF WESTMINSTER, 1931: BALFOUR DECLARATION 1926: COMMONWEALTH’S STATUS PRIOR TO ADOPTION OF STATUTE OF WESTMINSTER: CONSTITUTIONAL EVOLUTION OF COMMONWEALTH AND OTHER BRITISH DOMINIONS: DOCTRINE OF UNITY OF CROWN THROUGHOUT BRITISH EMPIRE: DOCTRINE OF AUTOMATIC BELLIGERENCY OF BRITISH DOMINIONS: SIGNIFICANCE OF MANNER IN WHICH AUSTRALIA ENTERED WORLD WAR 2 AGAINST GERMANY, JAPAN, ROMANIA, HUNGARY AND FINLAND: SIGNIFICANCE OF AUSTRALIA’S MEMBERSHIP OF UNITED NATIONS: LAWS GOVERNING AGREEMENTS TO WHICH COMMONWEALTH IS A PARTY
CHARTER OF THE UNITED NATIONS ACT 1945: MARITIME CONVENTIONS ACT 1911 (UK): Resolutions passed by Imperial Conferences held in 1926 and 1930: STATUTE OF WESTMINSTER, 1931: STATUTE OF WESTMINSTER ADOPTION ACT 1942
12 April 1946
Messrs. Coward, Chance & Co., Solicitors, London
Your letter of the 25th January was duly received, and I confirm my message by cablegram to the High Commissioner for you as follows:
Historian and Port Auckland. Commonwealth is sovereign state and consequence is that Commonwealth is not Crown for purposes Maritime Conventions Act stop Point taken that it is Crown should be abandoned stop Please arrange with Australia House for consultation with Dr. Evatt Attorney-General who is about to leave for London stop Am writing you fully also Australia House.
This is a matter which should have detailed consideration by Dr. Evatt. So far he has only been able to instruct me very generally and without seeing the papers. The observations that follow are for your information, and are to be taken subject to such instructions as Dr. Evatt may give you in London.
The relevant section of Halsbury (2nd edn.) is Vol. 11, title ‘Dominions, Colonies, Possession Etc.’ which was contributed by the late A.B. Keith. That section presents an outline history of the concept of dominion status, and conclusions are reached which are rather traditionalistic in tone. The law in that section is stated as at October 1, 1933, and the only relevant additions to that section are references to later judicial decisions. The views contained in that section are elaborated by A.B. Keith in other works, and in his latest major work on this subject entitled ‘The Dominions as Sovereign States’, the distinct sovereignty of the Dominions is admitted, but the emphasis tends to be on what are described as modifications of dominion sovereignty rather than on the positive aspects of the changed status of the dominions. A.B. Keith’s contributions may therefore be regarded as historically useful but inadequate as a presentation of the true constitutional situation.
The view to which the Australian Government is committed is that the Commonwealth of Australia is a sovereign state as well in inter-imperial relations as in international relations, and its rights and liabilities as a party to litigation in an English Court are to be determined according to the principles of International Law.
That proposition is not stated in so many words in any one instrument. It is rather to be gathered from a chain of constitutional documents and changes in constitutional practice. Documents of first importance are the Statute of Westminster, 1931 (22 Geo. v Ch. 4), and resolutions passed by the Imperial Conferences of 1926 and 1930 to which that Statute was designed to give effect. The reports of these Conferences and other relevant documents are conveniently collected in a small volume entitled ‘Speeches and Documents of the British Dominions 1918–1931 from Self-Government to National Sovereignty’ edited by A.B. Keith, and published by the Oxford University Press in the World’s Classics series.
The Statute of Westminsterwas not adopted by the Commonwealth of Australia until the 9th October 1942 (Statute of Westminster Adoption Act 1942, No. 56 of 1942), but even prior to its adoption, it could be said that ‘the Dominions possess the constitutional right as against Great Britain (1) to exercise full legislative, executive and judicial authority in respect of their domestic affairs and also (2) to deal fully with external affairs and for that purpose to enter to the extent they think fit into all or any relations with foreign powers’ (see ‘The British Dominions as Mandatories’ by Dr. H.V. Evatt (then a Justice of the High Court of Australia) in Proceedings (1933) of the Australian and New Zealand Society of International Law, Vol. 1 at p. 35).
A recent authoritative pronouncement of the Australian view of the Commonwealth’s juridical status is contained in an article entitled ‘Risks of a Big Power Peace’ by Dr. Evatt, now Attorney-General of the Commonwealth, in ‘Foreign Affairs’, an American Quarterly Review, in its issue of January, 1946, where he says: ‘They (the Dominions) are still united (with the United Kingdom) by bonds of both kinship and kingship. Their common allegiance to the King is not a fiction but an enduring reality.