John Latham and the Statute of Westminster

David L. Lewis

University of Sydney

This paper examines John Greig Latham's reaction to the Statute of Westminster. Although one of the more important conservative figures of Australian politics, Latham has not been a focus of much study. A very discreet and reticent person in public, he played his cards close to his chest. Any researcher wishing to scrutinise him is faced with little data for analysis, though there is an abundance of material. (1) Most papers are official, semi-official or business papers; the personal letters that survive tell us very little about him on the surface. However, his reaction to the Statute does give one an opportunity to examine certain aspects of Latham's attitudes.

Latham was a traditionalist politician - by that I mean his role in government was not to initiate social change, but to defend those parts of the system that he (and the Government) wished to maintain. His campaign against the Statute was one in a long line of these defences, which started with the removal of William Morris Hughes from the office of Prime Minister, and continued on to the end of his career. (2) There is a sense that Latham felt that he was the only one, or one of the few, who understood the strains his society was under. He valued the British Empire deeply, and did all he could to protect it, and to enhance Australia's role in it. He was not a populist, like Billy Hughes, or even his successor, Robert Menzies. He generally confined his speaking to `expert' or `learned' audiences. He did not rely on slogans, nor emotion. He did not spout narrow jingoism. Most of his political achievements did not happen in the public sphere, but in the `back-rooms:' (3) he spent some time as an officer for Naval Intelligence during the First World War, and in many ways, this mentality never left him.

He entered politics at a time of political upheaval - where Australian society, as he knew it, was under deep threat. He felt that the system was on the verge of collapse. He originally entered Parliament as an Independent on a platform of `Get Rid of Hughes'; William Morris Hughes' unorthodox methods as Prime Minister being anathema to the ordered, rational Latham. The formation of the Communist Party of Australia, and its subsequent activities, had led him to draft the infamous Crimes Act amendments of 1925, which were aimed against communist agitation. He was aware of growing Japanese aggression in the Pacific area. He was disturbed by deep dissatisfaction in the system. And, in 1929, the Great Depression started, which had a devastating effect on Australian economic performance.

For Latham, the Statute of Westminster was as important and significant an event as the American War of Independence. (4) One of the results of the War was the removal of British taxation from its colonies. Although technically a parliament can revoke any legislation it passes, the significance of this particular legislation made it impossible to revoke. Similarly, due to the Statute of Westminsters importance, once it was implemented, it would not be revoked. Latham called the war `a contest' (5) and claimed the British were making the best of a bad bargain; [the British] were retreating from an untenable position. (6) This watering-down of the significance of the American War of Independence is instructive. It demonstrates Latham's opinion of the superiority of the British political genius; he seems to suggest a gentleman's agreement between the two nations, much like the Statute was portrayed. (7) In fact, the British almost seem to win the war under Latham's interpretation. He was correct in his assessment of the Statute's importance, but he hoped that the Dominions, particularly Australia, could emulate their British forebears, and make the best of a bad bargain. By the time the Statute was passed, the United Australia Party (under the leadership of J. A. Lyons) was elected to government, and Latham was, due to his colleagues lack of enthusiasm for it, able to prevent the Statute being ratified in Australia for the rest of his political career. The Statute was not ratified in Australia until 1942.

The Statute of Westminster was passed in the British Parliament in December, 1931. It was the culmination of a process that can be traced back to at least 1917, with the Imperial War Conference of that year. It gave the self-governing Dominions of the British Commonwealth autonomy to make laws, without recourse to the British Parliament. Indeed, the Dominions could, for the first time, make laws that were detrimental to the position or legislation of another Dominion. The status of the British Parliament also changed, and it became, instead of the leading Parliament, a senior sister (8) of the Commonwealth. In effect, it was designed to codify the status of the following Dominions: Australia, Canada, South Africa, Eire (Ireland), New Zealand, Newfoundland and Great Britain. All but Great Britain had previously been colonies. At some point, they had evolved into Dominions; though no-one quite knew when this was, or even what a Dominion was. The best definition was that it something more than a colony, but something less than an independent state. (9)

For states such as Canada and South Africa, this definition was not enough. The racial and cultural differences which featured in the national make-up of these two countries understandably meant a less enthusiastic attachment to the Empire. Canada's proximity to the United States gave it a trade and defence partner that was closer, larger and as concerned about Canada's security as Great Britain. South Africa's Boer and Dutch population, coupled with its large amount of natural resources meant that there was less affinity for the British Empire. General J. B. Hertzog, Prime Minister of South Africa, summed up the South African position when he said that he could not feel the same allegiance towards Britain as those of British descent, though he understood their feelings.

Latham had been in staunch opposition to the Statute from the time it was first suggested. I have decided to concentrate on his position in 1931, as it is then it is most desperate - the Statute was to be passed in December, and Latham worked very hard and very quickly to try and diminish its effect on Australia. In any case, he had been a long and hard campaigner against any perceived watering-down of Imperial ties.

Latham's public career really began in 1918, when he was a delegate at the Imperial War Conference, assisting the Australian High Commissioner to London, Joseph Cook. He performed very well, and was asked to the Versailles Peace Conference in the same role. The expanded role of Dominions such as Australia, Canada and South Africa, demonstrated the growing international role and independence of the larger Dominions. Codification was the next step. The First World War changed the way Dominions dealt with foreign relations; hence formal changes were required. As a delegate to both conferences, Latham was in his element. A networker and an efficient self-promoter (10) Latham enjoyed mingling with the statesmen and luminaries who made up both conferences. (11) He was to meet many of these people at the 1926 Imperial conference, at which he was again a delegate.

The 1926 Imperial Conference was the first conference to officially address the issue of the definition of Dominion status. All dominions sent representatives, and the end result was the Balfour Declaration, of which the main point was that:

[T]he group of self-governing communities composed of Great Britain and the Dominions ... position and mutual relation may be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth. (12)

As Hudson and Sharp point out, Latham did not consider this dangerous for Australian interests; everything was sufficiently blurred so as to prevent any change in status for Australia. (13) It also stressed unity, allegiance (to the Crown) and a freedom of association. However, Latham was wary and prepared for any further change. His first strike in the anti-Statute campaign was delivered when he was asked to give the John Murtagh Macrossan lectures, which were later published. (14) In this work, Latham is defending the status quo. Latham argued the British Empire was bound by legislative, executive and judicial ties. Latham defended the Empire and Australia's role in it. Latham disputed formalisation of Empire relations as he felt' the British Commonwealth...a unique political organism which cannot be forced into the rigid frame of existing definitions.' (15)

In 1929, the Imperial Conference was held to codify the Balfour Declaration. Instead of the full delegation sent in 1926, the Bruce-Page government sent Sir Harrison Moore, formerly Professor of Law at Melbourne University. Moore's brief was simple - he was to react, to modify; he was not to initiate. (16) This was to prevent any Australian commitment to whatever may have resulted from the 1929 conference. This conference, known as the Operation of Dominion Legislation and Merchant Shipping Laws (or the O. D. L. conference) was where the Statute was to be legally defined. Latham kept Moores report (17) ; it probably disappointed him, and warned him as to what was coming. Even though Moore felt that the findings should have only been preliminary, he was forced to concede the political nature of the Conference gave it some finality.

Latham's worries increased throughout 1930. However, he got his first chance to oppose a practical application of the coming Statute. The Labor Government, under the leadership of James Henry Scullin, had decided to suggest the appointment of Isaac Isaacs to the position of governor-general. This was a break with the convention that had developed in Australia (though not in all other Dominions), which held that the appointee be nominated on the suggestion of the King. The suggestion of Isaac Isaacs by the Scullin government caused much controversy, but Scullin was eventually successful, and, it may be added, somewhat vindicated by his choice. Latham's opposition did not stem from any personal dislike of Isaacs (though there was certainly an element of dislike in his feelings for Isaacs), but that somehow, the dignity of the office was lessened through the government and not the King suggesting the candidate; and more importantly, that this loosened the ties between Australia and Britain.

Latham based his objections on his fear of losing the traditional ties with Britain. Had Isaacs been selected by the King, Latham claimed he would have had no objections. Yet, an Australian-chosen Head of State worried Latham. He was able to score a political point in claiming that the Labor government's own selection of a candidate, as opposed to one by the King, betrayed their lack of Imperial enthusiasm; a claim that drew a sharp retort from Scullin. (18) Latham could only see the degradation of the office if held by a Government-nominated appointee; he did not accept that a candidate selected by the government might strengthen the ties between the two nations, or that it might be a symbolically important positive gesture from a new nation. To Latham, the move for an Australian-picked governor-general was practically republican. (19)

The Statute was to be passed in 1931. All Dominions were able to review and suggest any amendments to the proposed legislation. Latham's speech outlining his suggestions for modifications to the Statute in the Commonwealth Parliament, as recorded in Hansard, (20) is a well-reasoned, forensic legal examination of the weaknesses of the proposed Statute. It seems an acknowledgment that he could not stop it completely, but that he could weaken its influence, hopefully significantly. He acknowledged that he agreed in principle with some of the proposed Statute. His objection lay in the cold definition that was to apply to Imperial status and relationship. And, he was able to use a uniquely Australian objection to water down the possible implications of the Statute.

Latham started his speech by acknowledging that the Balfour Declaration was a recognition of the existing position. (21) Latham felt that no further definition was needed. In this, he was in agreement with many of his colleagues, who agreed with the Bagehotian view that the British constitution had evolved naturally, and that forcing a definition on it somehow disrupted the essentially mysterious quality that the British Constitution had depended on for centuries.

Given that a legal definition was to be forced upon the Empire, Latham had determined legal problems. Not moral, social, cultural, or political, but legal. This was partly his legal training and experience. However, it was also his attempt at derailing the Statute (or at least limiting its ramifications), and in such a way that no objections could be made - provided, of course, it was accepted that a legal approach was fully objective, or scientific. Latham understood the interests of Canada and South Africa were inevitably different to those of Australia - his own experience of Imperial Conferences confirmed that - but he felt that the blood ties between the Dominions was not something that could be legislated and formalised, and that certain parties, for their own ends, could use the Statute to ruin the Empire.

I will only examine those parts of his speech in which he was able to weaken the Statute with. (22) Latham commented that the object of the statute was to extend Dominion legislative powers in certain directions, and to limit the power of the United Kingdom in relation to the matters as to which the powers of the Dominion parliaments are extended. (23)

To Latham, this was very significant; it was more than a standard piece of legislation that could be repealed at any time - it was analogous to the outcome of the American Revolution. In other words, though the Parliament could technically repeal any law it had passed, the Statute of Westminster was a significant constitutional change, that once implemented, could not be changed. Hence, it had to be fully correct first time. And Latham's definition of fully correct meant as watered-down and as benign as possible. He picked the significance of the Statute; he knew that Australian government and society would change forever; and he feared, because of this, a breakdown of the system so disastrous it would turn his whole world upside-down.

His first objections were not serious; he claimed he was merely trying to avoid later confusions. He agreed that Dominions should be able to have full power to make laws for extra-territorial operation, but, as a lawyer, he did not approve of the language which has been used. (24) Latham flagged similar concerns for the clause within the Statute which dealt with the Colonial Laws Validity Act. The Statute had a clause which was to over-ride this Act, which simply meant that any law passed by a Dominion or colony shall be void or inoperative if repugnant to any statute of the Imperial Parliament applying to that dominion or colony. Latham approved of this clause. It meant that the Parliament of Australia could pass a law, at some stage in the future, that repudiated the Statute of Westminster. It is equally true, as Latham pointed out, that it gave the Dominions complete legislative power, but did not extend the legislative powers that the Australian Parliament had under the Constitution. (25) Through an analysis of this clause he was able to deliver what he felt was a fatal and telling blow to the Statute.

At what point, Latham asked, did the Australian states go under the umbrella of the Statute? Latham was able to revive the question of the definition of Dominion. The Dominion of Australia was the Federal Government - but the States, according to the Constitution, are not inferior to the Federal Government. Where then, did the Statute lie in regards to any one of the Australian States? Latham could claim that the Federal Government had no control over the relation of the States to Britain. (Though, even then, this was a contentious issue.) (26) The vagaries of the Constitution, some of which Latham had long deplored, (27) served him well in this context.

Latham also felt that the Commonwealth of Australia should choose when the Statute was to take effect; and, following on from his earlier point, the Commonwealth of Australia should also be able to repeal the Statute if it so felt. He suggested an amendment that allowed the Federal Parliament to repeal the Statute at any time. Latham's argument was that since other British legislation could now be repealed, the Statute of Westminster itself may be so repealed, should the Government desire it. (28) Latham could foresee a time where he would hopefully be part of a government that would repeal the Statute. (29) In concluding this point, he asked: `Why should such a clause as this be riveted upon us indefinitely?' (30)

Latham's final suggestion was to ensure that nothing in the Statute could change the Australian constitution; the Constitution could only be changed through referendum. His reading of the Statute suggested that any Australian law could be over-ridden by the British Parliament. He felt that the Australian Parliament should have no right or license to invite the British Parliament to legislate on matters which are exclusively within the State sphere. He was concerned that a Government, at some stage in the future, might approach the British Parliament to pass a contentious or controversial piece of legislation. It is a seeming paradox that Latham had wanted to increase British power, but now he wished to repress it. At no stage did Latham deny that Australia was a sovereign nation. His view was that Australia was part of a community of sovereign nations - the British Commonwealth - all of which fitted within the paradigm of the Balfour Declaration. To try and clearly define the powers of the Dominions could only lead to disaster, and lead unscrupulous governments to damage Imperial relations.

The Statute of Westminster, despite (or perhaps because of) its constitutional and political importance, did not fire the imagination of many. Latham was almost unique in his efforts to, if not prevent it, then to limit its effectiveness. While most other commentators saw it as an inevitable, though regrettable, process, Latham did all he could to prevent it. Why did the Statute bother Latham so much, when others, who were also worried about its impact, were resigned to it? In a wider context, the position of Australia seemed precarious. He was certainly worried about republicanism; and not merely the risk of democratic republicanism - though this seemed distasteful to him in any case. Also, he saw the links of Empire as something more than economic and military - though he certainly felt that these more banal ties were important. Latham's attachment to Empire was as much sentimental as logical. The Empire had survived several calamities, but only through the close attention of a group of elite who had managed to protect it. Latham saw himself as one of these elite, and kept his charge for the entirety of his life. He saw himself as being one of the few who recognised how serious the situation was; how close the Commonwealth was to collapse.

Though he understood the different national interests of the other Commonwealth nations, he wished that these differences could be suppressed in the gaze of international politics. Latham agreed with the image of the Commonwealth as a family; Latham's own upbringing was close, and somewhat tolerant. (31) He felt that the natural social and racial bonds of the Empire could be dealt with, as a family, with all its squabbles and differences. Unfortunately for Latham, the world had changed contrary to his wishes. Though he could impede the Statute, he could not prevent it indefinitely. The Empire was not to last forever and the Statute of Westminster was to stand.

Notes

(1) The Latham papers are kept in the National Library of Australia at MS1009 and MS 6409. They use over eighteen metres of shelf space. One of the few works to consider Latham's role in the history of Australian conservatism is David Pott's 1972 Melbourne MA Thesis.

(2) Even in the 1950s, Latham was involved in anti-communist organisations such as the AACF.

(3) He was not corrupt, in the sense that he made any personal gain from his dealings. In fact, he went to great pains to highlight how little material gain he made from politics.

(4) Commonwealth Paliamentary Debates (hereafter CPD), House of Representatives, 17 July 1931, pp. 4061 - 4070.

(5) CPD, House of Representatives, 17 July 1931, p. 4063.

(6) ibid, p. 4063.

(7) Cf. Robert Menzies view of the English Civil War as a gradualist event in the development of the British constitution. Brett, J, Robert Menzies Forgotten People, Sun Books, 1992, p. 142.

(8) Garran, R.R, Prosper the Commonwealth, Angus and Robertson, Sydney, 1958, p. 326.

(9) Wheare, K.C, The Statute of Westminster and the Dominions, Oxford University Press, 1949, p. 15.

(10) See Osmond, W., Eggleston,: An Intellectual in Australian Politics, Allen and Unwin, North Sydney, 1985; also Cowan, Z., Sir John Latham and other papers, Oxford University Press, 1965.

(11) Garran, op.cit, pp. 265 - 267.

(12) Imperial Conference 1926, Inter-Imperial Relations Committee, 1st meeting, p. 2, quoted in Hudson, W.J, and Sharp, M.P, Australian Independence: Colony to Reluctant Kingdom, Melbourne University Press, 1988, p. 93.

(13) ibid., (Hudson and Sharp) p. 93.

(14) Latham, J.G, Australia and the British Commonwealth, Macmillan, London, 1928.

(15) Latham, op.cit, p.6.

(16) ibid., p. 103.

(17) MS 1009/48/b, p.26.

(18) Cowan, Z., Isaac Isaacs, University of Queensland Press, 1992, p. 193.

(19) Alomes, S, and Jones, C., Australian Nationalism: A Documentary History, Angus and Robertson, 1991, p. 202.

(20) CPD, 17/8/1931, pp. 4062 - 4070.

(21) ibid., p. 4063.

(22) It was a long speech; it was twice extended, and he spoke for approximately one hour.

(23) op.cit, p. 4062.

(24) ibid., p. 4062.

(25) ibid., p. 4063.

(26) ibid., p. 4064.

(27) ibid., p. 4064.

(28) He arrived at this conclusion, though it is not mentioned in the speech, through discussion with various state Attorneys-General, particularly H.E Baker of Tasmania. See MS 1009/48/70.

(29) e.g The Revision of the Commonwealth Constitution: Notes of an address by Mr J.G Latham to Members of the National Union Committee, Monday, September 19/21, in Herbert and Ivy Brookes Papers, MS 1924/19/321, National Library of Australia.

(30) ibid., p. 4069.

(31) MS 1009/2 is the series containing Lathams diaries. The earlier diaries give some description of his home life.