While all agree that Australia is, or was intended to be, a federal system of government, there has been limited discussion of the role that secession plays as an implication of the federalist principle. To rectify this neglect, I propose to investigate the legality of the unilateral secession of an Australian state.
The background to my inquiry arises from Western Australia’s 1933 attempt at seceding from the Commonwealth of Australia. A referendum held on 8 April 1933 in Western Australia produced a compelling result: nearly 70 per cent were in favour of WA seceding from the Commonwealth. It was an emphatic rejection of a federation that had been consummated a mere 32 years previously. Despite the two-thirds majority in favour of seceding, WA did not obtain recognition for its claim, either from the federal government or the United Kingdom. As a theoretical concern, the lineage of secession in Western legal theory can be traced to the Glorious Revolution of 1688 in England, which established the principle that the sovereign people, in extraordinary circumstances, could go outside formal constitutional procedures and depose tyrants. English scholar William Blackstone endorsed this principle. Furthermore, the US Declaration of Independence is an example of the desire to effect revolutionary change and overthrow a government: Britain’s oppression of the American colonists gave rise to a claimed inherent right to ‘alter or to abolish’ existing structures. Previous work has produced near unanimity holding against the legality of secession, at least via unilateral state legislative action, however there is divergence in reasoning as to why it would be unconstitutional. John Quick and Robert Garran in The annotated constitution of the Australian Commonwealth have suggested the preamble to the Constitution bars secession because the phrase ‘indissoluble Federal Commonwealth’ implies a permanent union. Another school of thought expressed by William Moore finds that secession is ruled out by the covering clauses, that is, sections one to nine of the Constitution. Gregory Craven reopened the question in 1985, albeit finding that that unilateral secession is not permitted by the Constitution.
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