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 was not permitted by the provisions of the Australian Constitution.
Peter Radan’s 2006 article summarising developments in the US, Yugoslavia and Canada, indicates that constitutional courts generally prioritise the interests of the whole nation over that of an individual state. As Radan finds, ‘the agreement of other federal units is necessary for secession to occur…because secession is not merely a concern of the federal unit that wishes to secede but also a concern of other units in the state’. He does note however, that the Canadian Supreme Court is sympathetic to the idea that gaining recognition from foreign nations can help solidify a state’s secession under international law.
A few things have changed since 1933 that would make my research at this moment worthwhile. First, a right of self-determination is now recognised under international law – specifically by the United Nations Charter, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Second, the planned withdrawal of the United Kingdom from the European Union has brought secession to the fore of British legal discussion through the decision in Miller v Secretary of State for Exiting the European Union  UKSC 5. Third, there are regular calls for exit by WA state legislators, including a proposal in September 2017 at the Liberal Party conference to ‘examine the option of WA becoming an independent state within the Commonwealth’.
Key research questions:
• To identify the history of federalism and whether secession can be said to be, in theory at least, an implication of the federalist principle as envisioned by the original framers of the American, British and Australian constitutions
• To outline the current jurisprudence of Australian federalism, as discussed by the Australian Parliament and the High Court in particular
• To determine whether Australian constitutional history, constitutional text, case law and statute can support the peaceful, orderly withdrawal of an Australian state from the Commonwealth of Australia, so that said state can become an independent nation
• To consider the role that recent developments in international law might play in determining the legality of the secession of an Australian state
Main issues dealt with:
The following describes the types of issues likely to be discussed in the thesis:
• The preamble to the Constitution and what impact, if any, its mention of an ‘indissoluble’ Federal Commonwealth might have on the legality of secession: A line of academic writing argues that the preamble evinces an intention on the part of the Australian framers to incorporate the lessons of the American Civil War: namely, it is suggested that the framers believed a misplaced desire to secede in that conflict ought to serve as a warning to those seeking to break up the Commonwealth, and it is for this reason they drafted the preamble in a way that discourages disunity.
However, it could be pointed out that the framers, though aware of the American experience, spent little time during the constitutional conventions discussing secession. The amount of time they spent discussing the matter suggests that it was not of much importance to them, or perhaps that they did not foresee it becoming an issue in the future (evidence of this latter point might be found in the fact that although the Constitution contains a mechanism to admit new states, it contains no mechanism for existing states to secede). Certainly, there is little to indicate that the preamble was intended to be legally binding. Can modern day jurists nevertheless impute an intention via the preamble that is not made explicit anywhere else in the Act? Craven suggests that under ordinary principles of construction, ‘[r]ecourse may be had to the preamble in the interpretation of a Statute, but only if the words of the section under consideration are first found to be unclear or ambiguous’. But even if there is ambiguity in a substantive provision, the preamble itself may be open to competing interpretations and thus would potentially be barred from consideration.
• Specific provisions of the Constitution, their interpretation in the constitutional conventions of the 1890s and since Federation: One of the leading scholars to consider secession’s legality, Professor Craven, finds no need to rely on the preamble because in his view the substantive provisions of the Constitution unambiguously bar secession. The key sections according to Craven are ss 3 and 4 of the covering clauses, which by their wording incorporate into a federal union the named states of Australia upon proclamation by the Queen. He also finds that s 51 read broadly bars secession of a state because if a state withdrew from the Commonwealth, such a manoeuvre would have the result of preventing the federal government from exercising its constitutional heads of power over matters provided for in that section.
Several questions arise upon inspection of the covering clauses. First, clause 6 defines ‘the States’ as meaning ‘the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia and South Australia…as for the time being are parts of the Commonwealth’. Is there any basis to suggest that the emphasised text presumes a voluntary agreement? Second, assuming the monarchy’s proclamation under clause 3 still has binding force in Australia, would it matter that a state is not named? Since only ‘the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and…Western Australia’ are named, would any newly created state have the option not to be bound?
• American founding father Thomas Jefferson’s contractual theory of constitutional interpretation: can it be supported in an Australian context? Thomas Jefferson’s Kentucky Resolutions and James Madison’s Virginia Resolutions of 1798 laid the groundwork for a theory of federalism that allows for greater participation by the States in interpreting the Constitution. The endpoint of what is known as the contract theory of constitutional interpretation was summed up by Clyde Wilson, who opined that ‘[f]ederalism implies states’ rights, and states’ rights imply a right of secession’. While early High Court authorities refer to the Constitution as a ‘compact’, the notion that if the central government oversteps its constitutional bounds the states have a right to nullify federal laws they deem unconstitutional is not generally accepted in Australia. Nonetheless, the argument merits examination. First, Australian case law provides hints in favour of the mode of constitutional interpretation favoured by Jefferson and Madison. Latham J’s declaration in South Australia v Commonwealth that ‘[a] pretended law made in excess of power is not and never has been a law at all’, that ‘[a]nybody in the country is entitled to disregard it’ and that ‘[i]f it is beyond power it is invalid ab initio’ is, taken on its own, fairly similar to Jefferson-Madison reasoning. Second, the historical circumstances of union in America and Australia are similar, and this may allow for drawing legal parallels between the two jurisdictions. The Commonwealth is a creature created by the colonies deciding to come together (albeit with the UK’s legislative approval), and did not exist prior to Federation. It is possible that the colonies would not have joined together if it had been revealed that they were forever bound to one another; indeed, such an implication was downplayed by the proponents of federation during the 1890s to gain popular support.
• The legal experience with secession in other Commonwealth countries, especially Canada (Reference Re Secession of Quebec  2 SCR 217)
• Judicial recognition of international treaties and their relevance to checks and balances upon the federal government through self-determination of a state
• Enforcement of secession through coercion: can the manner of enforcement and issues pertaining to federal balance play a part in influencing legal principle? In case of ambiguous text, it is a presumption of statutory construction that, absent express wording, a manifestly absurd or unjust result cannot have been intended by lawmakers. James Ostrowski has suggested in relation to the US Constitution that keeping a state forcibly within the United States, through military arms, would be inconsistent with the system of representative democracy and federalism established by that document. While Ostrowski represents a minority viewpoint, the Civil War shows that violence between federal and state governments is a real possibility in any Western democracy. During and after the Civil War, martial law was declared by occupying Northern troops at the expense of constitutionally protected democratic institutions in the state governments of the South.
The need to maintain state governments and not destroy their essential functions has been recognised in Australia in Melbourne Corporation v Commonwealth (1947) 74 CLR 31. An additional factor worth considering in this regard is the interrelationship between the complex structure established in the Constitution, which grants specific enumerated powers to the Commonwealth with the undefined residue being left to the States, and use of force against a state. Specifically, how would the federal government garrisoning troops in a rebellious state tie in with the words s 119, under which the federal government must typically wait for a request from a state before intervening militarily (though the executive branch, when acting under s 61, is not required to abide by this requirement)? Other constitutional provisions likewise indicate the emphasis the Australian framers placed on the states’ consensual interaction with the federal government, for example ss 107, 123 and 124. And in the preamble, mention is made that the colonies ‘agreed’ to unite as a Commonwealth – potentially indicating voluntary consent was the basis for their entry into the union.
My PhD: Methodological choices
My investigation will rely primarily on Australian law rather than international law. My decision to focus on municipal sources is a methodological choice open to change as I become more deeply immersed in the literature, since I may discover that the importance of international affairs in the High Court’s interpretive approach is vital to my research question.
While my ultimate focus will be on doctrinal questions in Australian law, I will nonetheless draw upon international case studies to draw legal conclusions that might be enlightening. I will consider the following communities which have experience with secession: Canada, the United States of America (secession from the British empire), Bangladesh, India, Kosovo, the United Kingdom (in the context of exiting from the European Union) and more recently Catalonia (Spain). I have working proficiency in Hindi and Assamese, which are two Indian languages used in two regions affected by secessionist impulses.
The emphasis will be on analysing constitutions, legislation, case law and influential parliamentary statements to determine whether there is any legal principle that might guide a future High Court in deciding secession's legitimacy.
I welcome feedback on this PhD proposal!