Scarecrow said:
How about the Western Secessionists?
Scarecrow said:
ok, well how about an exercise in constitutional legal practice? Obviously there are two sides, so let's look at their arguments. Now the Feds will be against secession so we'll look at what they can do first.
The Feds will obviously want to prove that the Commonwealth is "indissoluble". But as we know this statement is in the Preamble & can't be used at prima facie. So the Commonwealth has to find a way to get into the Preamble via a link. However, there's nothing in the Constitution pre se that clearly links to the first paragraph of the Preamble. Furthermore, Quick & Garran state in The Annotated Constitution of the Australian Commonwealth, that the term "indissoluble" is a principle & not a law. This is why it is not in the Constitution proper, even though Quick would argue that the Commonwealth is "indissoluble".
So the Feds must look, instead, to Section 51. Here it states, in Paragraph vi, that the military forces are controlled by Parliament "... to execute and maintain the laws of the Commonwealth". If this is so, this opens the way for statue law to be brought into the situation. And in this case we'd be talking about the Crimes Act (1914)
Now the relevant part of the Crimes Act (1914) is Section 24. This deals with Treason & Sedition. In other words, the actions of WA to secede could be declared sedition. As a result, the West is acting illegally in wanting to secede from the Commonwealth. As a result of this, it is therefore implied in the Constitution that the Commonwealth is indeed "indissoluble". Once this is established, then you can point to the Preamble thus supporting the arguement that it is not only implied in the Constitution, but indeed is a fundamental component that cannot be denied. As such West Australia couldn't secede. And any attempt to do so, is sedition & treason as outlined in the Crimes Act (1914)
Then there's what Western Australia can argue. First off, they will remind everyone that the Preamble has no barring on Constitutional Law. Then they will rightly point out that there is no such section in the Australian Constitution that states that the Commonwealth is "indissoluble". Furthermore, they will argue that there isn't even a hint in the Constitution about it being "indissoluble" at prima facie. Again they would be right.
But then comes the clincher to the whole Constitutional position. If Western Australia secedes, can they be successfully charged with treachery? The whole problem is for the Feds, on this issue, is that WA isn't declaring independence from Britain. As a result they aren't dealing in sedition against the Monarch. Instead they are wanting independence from the Commonwealth. These are two different issues.
Then Western Australia will point out, in regards to the Crimes Act, that the Secession Act is a creature of the Western Australian Parliament. As a result, it would be (& the leaders of WA involved with secession) protected by Parliamentary Privilege. As a result, by their reckoning, the act of secession is exempt from the Crimes Act (1914) & thus they can't be charged with treachery &/or sedition.
Yet, even if these arguements fail, & the first paragraph of the Preamble is allowed into the Federal case, then Western Australia can counter-argue that their state isn't mentioned in the first paragraph. If they aren't mentioned, then they aren't required to abide by the principle that the Commonwealth, at least for their part, isn't "indissoluble".
The initial overall result favours the West Australians. Having said that, however, they are far from guaranteed that the High Court verdict will go their way. It'll really come down to the make-up of the Bench in all honesty & the skills of the legal teams involved. There is one little thing, however, which could balance if not tip the scales in the Feds favour. In 1935, Western Australia went to London seeking its approval to secede from the Commonwealth. London refused. Now the Feds could use that as precedence on the matter & so the verdict may go in favour of the Commonwealth. Overall, though, I'd still give the West a 50-60% chance.
Scarecrow said:
A better POD is that London, in 1935, has a different mind on the matter & permits secession. But I doubt it as it was London in 1900 who told Forrest to either join the Commonwealth or lose the Premiership & that they'd appoint someone who would allow WA join instead.