The Legality of Western Australia’s Unilateral Secession

This thesis investigates the possibility of Western Australia’s secession from the Commonwealth of Australia. Although there are many types of secession (including negotiated secession), the focus of this study is on the state’s unilateral withdrawal from the federal union in a manner which does not seek permission from other states or from the federal government.  Although the Australian framers of the Commonwealth of Australia Constitution Act 1900 (UK) did seek to discourage secession, there is no evidence that they sought to prohibit it. The political facts that have flowed from the abdication by the United Kingdom of its authority over Australia, as reflected in the Australia Act 1986 (UK) and (Cth), now lend support to the High Court’s doctrine of popular sovereignty which says that the electors are sovereign over Australia. However, this thesis argues that it is the people of an individual state who are sovereign, not the people of Australia as a whole. The basic norm of popular sovereignty organised by state, along with a state’s constitutional text, structure and history, provides support for a shared sovereignty interpretation that now permits unilateral secession by Western Australia. A right to secede falls within the ‘peace, order and good government’ power in section 2 of the WA Constitution.  In addition to a state having an inherent right of secession flowing from its internal constitutional arrangements, there are reasonable arguments available that enable the consistency of secession with the Commonwealth Constitution. Through an examination of the Preamble, Covering Clauses, Commonwealth parliamentary powers in ss 51 and 52 of the Constitution, the judicial power in s 71 and the financial, trading and equal treatment provisions at ss 92, 105A and 117, this thesis provides an interpretation that allows for the lawfulness of secession. The Preamble is ambiguous and the Covering Clauses envision a consensual relationship. There is no express, prerogative or nationhood power to coerce a state that could give rise to an inconsistency with Commonwealth power. Furthermore, this thesis also argues that the judicial power of the Commonwealth may be consistent with secession. Finally, border closures by WA in response to the COVID-19 crisis is one element that suggests the financial and trading provisions are unlikely to pose an obstacle to the high degree of autonomy required for secession.