: Opinion

Opinion

In each issue of the Alternative Law Journal, we run an Opinion. Although not necessarily the Opinion of the issue editors, sometimes it will be an editorial which attempts to unify the issue theme, and will point to issues raised in the edition. Other times, the Opinion will be a controversial piece designed to publicise or encourage discussion on a particular topic. But, no matter what, our Opinions are always worth reading. Here are the Opinions that we have published recently.

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NOT so straight forward

Domestic violence in Australia

The picture of domestic violence in Australia is stark and compelling. Approximately 1.2 million women have experienced violence at the hands of a (usually male) current or former partner.1 Responses have understandably and necessarily focused on reducing the prevalence of male violence against women.2

It is important to remember, however, that domestic violence knows no boundaries. It can occur in all relationships, regardless of the sex, sexual orientation or sex or gender identity of the persons involved. Research suggests, for example, that domestic violence occurs at a similar rate in same sex relationships as in heterosexual relationships.3

(2011) 36(4) AltLJ 224

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Sleepwalking into Dangerous Territory

Lizzie O'Shea and Jen Robinson

Failure of the European Arrest Warrant framework from a human rights perspective

Julian Assange is the most well-known person in the world currently facing extradition. His case highlights some concerning developments in the law of extradition, in particular, the system of European Arrest Warrants (‘EAW’). Whatever the merits of the case against Assange under Swedish law, like everyone facing an EAW, he has every right to challenge the basis of his extradition. His case provides an insight into the more general problems of EAWs, which should concern all human rights advocates, extradition practitioners and policy-makers. Such insights may serve as a warning in Australia of what might happen if an overly expedient approach is taken to extradition treaty provisions.1

(2011) 36(3) AltLJ 146

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Participating in Political and Public Life

Ron McCallum

A challenge for we persons with sensory disabilities

Unanimous JuryArticle 29 of the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) provides that ratifying countries like Australia must ‘guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others’. The range of disabilities is broad, however. In this short piece, my comments will be confined to the right of we persons with sensory disabilities to vote in federal, territory and state elections, and the right to sit as members of juries. Put briefly, my focus will be on persons like myself who are blind, or who are significantly vision impaired, and persons who are deaf or who are significantly hard of hearing.

(2011) 36(2) AltLJ 80

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Independence Day

Anne Twomey
Australia does not have an 'independence day'. When other former colonies celebrate the anniversary of the day they became independent of the United Kingdom, we have to celebrate the date that Australia was first settled, because we don't know exactly when Australia became independent.

Why is this so? There are two reasons. First, because Australia became independent at the national level through incremental changes that involved both the grant of power and the subsequent exercise of power, making it hard to tell at what point the scale tipped from colonial dependency to independence. In the 1920s, through Imperial conferences, changes were made to practices and conventions that progressively conferred upon the 'self-governing Dominions', such as Australia, the attributes of sovereignty, including the power to act on the world stage by entering into treaties. In 1931, this was supported by the Statute of Westminster which gave legislative independence to the Dominions and confirmed that the British would no longer legislate for the Dominions except at their request. Australia, however, was reluctant to exercise its independence and did not do so for some time. It did not declare war on its own behalf or adopt the Statute of Westminster until the middle of World War II.

ustralia does not have an ‘independence day’. When other former colonies celebrate the anniversary of the day they became independent of the United Kingdom, we have to celebrate the date that Australia was first settled, because we don’t know exactly when Australia
became independent.

Why is this so? There are two reasons. First, because Australia became independent at the national level through incremental changes that involved both the grant of power and the subsequent exercise of power, making it hard to tell at what point the scale tipped from colonial dependency to independence. In the 1920s, through Imperial conferences, changes were made to practices and conventions that progressively conferred upon the ‘self-governing Dominions’, such as Australia, the attributes of sovereignty, including the power to act on the world stage by entering into treaties. In 1931, this was supported by the Statute of Westminster which gave legislative independence to the Dominions and confirmed that the British would no longer legislate for the Dominions except at their request. Australia, however, was reluctant to exercise its independence and did not do so for some time. It did not declare war on its own behalf or adopt the Statute of Westminster until the middle of World War II.

So the question arises — does one achieve independence at the point when one has the capacity to exercise full independent powers, or when one actually does exercise them? It is a bit like the situation of the twenty-something who continues to live at home with his or her parents — independent in theory but still reliant on Mum’s cooking and washing.

Arguably, Australia was independent at the national level from December 1931, when it gained the capacity to be independent, rather than when it actually exercised that independence. If so, then
11 December this year will mark the 80th anniversary of Australia’s independence.

The second reason why it is difficult to ascertain when Australia became independent is that the changes in law and convention that affected Australia at the Commonwealth level did not flow on to the Australian States. Somewhat bizarrely, even after Australia became an independent sovereign nation, the Australian States remained ‘colonial dependencies of the British Crown’. So we had an independent nation comprised of constituent polities that were the dependencies of another country. It is not something that anyone in their right mind would ever propose,
but it just evolved that way for various political reasons.

This meant that State Governors continued to be appointed by the Queen on the advice of British Ministers and that it was the Queen of the United Kingdom (not the Queen of Australia) who gave royal assent to State Bills. When an Australian Governor-General once complained to the British Government about this anomaly, the response of British diplomats was that it was better to ‘let sleeping anomalies lie’.

In Australia it was assumed that the requirement for State matters to go to the Queen through British Ministers was just one of those quirky British formalities. Indeed, all the constitutional law books of the era regarded British Ministers as mere ‘channels of communication’ and stated that it would be unthinkable for the British to interfere in State affairs. But the reality was that British Ministers took their role of advising the Queen seriously and were not simply conduits for State advice. In the 1950s, when a Tasmanian Premier thought that the office of Governor might be a nice retirement job and proposed to nominate himself for the position, he was swiftly informed by the British Government that this was not an option. In 1975, when Joh Bjelke-Petersen tried to get the Queen to extend the term of a controversial Queensland Governor, British Ministers refused to pass the advice on to the Queen. The sleeping anomalies had awoken and even conservative Premiers realised that they needed to break their links with the UK.

Neville Wran was so alarmed at British involvement in State affairs that he proposed to break off links with the UK unilaterally. In 1979 the NSW Government proposed the enactment of laws terminating Privy Council appeals from State courts and requiring the Queen to act on State advice in appointing State Governors. The British Foreign Secretary, at the insistence of Buckingham Palace, sent a despatch to the Governor telling him the Bills would have to be reserved for the Queen’s assent and that he would advise her to refuse assent. The Privy Council Bill had already been passed by both Houses of NSW Parliament with bipartisan support. It was quietly buried in the Governor’s desk drawer rather than being reserved and refused assent. The other Bill did not proceed. Most Australians would have been shocked to know that the UK Government was telling New South Wales what laws it could or could not pass in 1979. But the Australian people were not told. While on the one hand politicians were not prepared to ‘embarrass’ the Queen by asking her to do something that she did not want to do, they were even more concerned not to bring embarrassment on themselves by letting anyone know that the Queen objected to their legislation.

These events spurred State leaders on to negotiate the termination of residual constitutional links with the United Kingdom. After years of negotiations this was finally achieved — not by a referendum, but by legislation passed by the State, Commonwealth and British Parliaments. On 3 March 1986 the Australia Acts 1986 came into force. They terminated the British Government’s responsibility for the government of any State, and the Westminster Parliament’s capacity to legislate for Australia as part of Australian law. Most importantly, they transferred into Australian hands full control of all Australia’s constitutional documents.

So another candidate for Australia’s ‘independence day’ is 3 March 1986. That is the day when Australia achieved complete independence from the United Kingdom at the national and State level. On that basis, Australia should be celebrating 25 years of independence. Happy Australian Independence Day (whichever day you choose).

ANNE TWOMEY is an Associate Professor at the University of Sydney Law School and the author of
The Australia Acts 1986 – Australia’s Statutes of Independence (Federation Press, 2010).

An article on a similar topic to this Opinion
was published in
The Australian on 3 March 2011.

(2011) 36(1) AltLJ 2

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