Australia Act 1986

Photo of the Australia Act 1986 (United Kingdom) documentlocated in Parliament House, Canberra

The Australia Act 1986 is the name given to a pair ofseparate but related pieces of legislation: one an Act ofthe Commonwealth (i.e. federal) Parliament of Australia,the other an Act of the Parliament of the United King-dom. While each Act gives its short title as AustraliaAct 1986, in Australia they are referred to, respectively,as theAustralia Act 1986 (Cth) and theAustralia Act 1986(UK). These nearly identical Acts were passed by the twoparliaments, to come into eect simultaneously, becauseof uncertainty as to which of the two parliaments had theultimate authority to do so.TheAustralia Act (Cth and UK) eliminated the remainingpossibilities for the UK to legislate with eect in Aus-tralia, for the UK to be involved in Australian govern-ment, and for an appeal from any Australian court to aBritish court.[1]

1 UK and Australian legislationThe Commonwealth of Australia was formed in 1901 byfederation of six British colonies, each of which becamea State. The Commonwealth Constitution provided for aCommonwealth Parliament, with legislative power on arange of specied topics, leaving the residue of legisla-tive power to the States. That constitution was (and stillis) contained in a British statute.[2] The United KingdomParliament retained ultimate legislative power in relationto Australia.The UK Parliaments power to legislate with eect for theCommonwealth itself was mostly ended with the Statuteof Westminster 1931, when adopted by Australia in 1942retroactive to 1939.[3] The Statute provided (s 4) that no

future UK Act would apply to a Dominion (of whichAustralia was one) as part of its law unless the Act ex-pressly declared that the Dominion had requested andconsented to it. Until then, Australia had legally beena self-governing colony of the United Kingdom, but withthe adoption of the Statute became a (mostly) sovereignnation.However, s 4 of the Statute only aected UK laws thatwere to apply as part of Australian Commonwealth law,not UK laws that were to apply as part of the law ofany Australian State. Thus, the Parliament of the UnitedKingdom still had the power to legislate for the states andterritories. In practice, however, this power was almostnever exercised. For example, in a referendum on seces-sion in Western Australia in April 1933, 68% of votersfavoured seceding from Australia and becoming a sepa-rate Dominion. The state government sent a delegationto Westminster to request that this result be enacted intolaw, but the British government refused to intervene onthe grounds that this was a matter for the Australian gov-ernment. As a result of this decision in London, no actionwas taken in Canberra or Perth.The Australia Act ended all power of the UK Parliamentto legislate with eect in Australia that is, as part ofthe law of the Commonwealth, a State or a Territory(s 1). Conversely, no future law of a State would bevoid for inconsistency with (being repugnant to) anyUK law applying with paramount force in Australia;a State (like the Commonwealth) would have power torepeal or amend such an existing UK law so far as it ap-plied to the State (s 3). State laws would no longer besubject to disallowance or suspension by the Queen (s 8) a power that, anomalously, remains for Commonwealthlegislation (Constitution ss 59 and 60).[4]

2 Government in Australian states

Similarly, the Australia Act removed the power of theBritish government to be involved in the governing of anAustralian State (ss 7 and 10). Specically, only the StatePremier could now advise the Queen on appointment orremoval of a State Governor. Nonetheless, the Queencould still exercise any of her powers with respect to theState if she was personally present in the State.[5]

1

2 5 THE ACT AND AUSTRALIAN INDEPENDENCE

3 Appeals to the Privy Council

At federation in 1901, the supreme court of each colonybecame the supreme court of that State. In 1903, a HighCourt of Australia was established, one of whose func-tions was to hear appeals from the State supreme courts.The draft of the Constitution that was presented to theBritish government for embodiment in UK legislation hadprovided that the High Court would be Australias nalcourt of appeal. However, the British obtained a com-promise. Constitution s 74 provided two possibilities ofappeal from the High Court to the Privy Council. Therecould be an appeal if the High Court issued a certicatethat the matter was inter se, i.e. that it concerned consti-tutional relations between the Commonwealth and one ormore States or between two or more States. And therecould be an appeal with permission of the Privy Coun-cil. The Commonwealth Parliament was empowered tolegislate to limit the latter path and it did so in 1968 and1975;[6] but legislation could only limit, not abolish.Predictably, the High Court proved reluctant to grant cer-ticates for appeal to the Privy Council. The discretionwas exercised only once, in 1912.[7] In 1961, deliveringon behalf of the whole Court a brief dismissal of an appli-cation for a certicate, Chief Justice Sir OwenDixon said:experience shows and that experience was anticipatedwhen s. 74 was enacted that it is only those who dwellunder a Federal Constitution who can become adequatelyqualied to interpret and apply its provisions.[8] In 1985,the High Court unanimously observed that the power togrant such a certicate has long since been spent and isobsolete.[9]

Although the path of appeal from the High Court to thePrivy Council had been eectively blocked, the HighCourt could not block appeals from State supreme courtsdirectly to the Privy Council. Nor did the Constitutionlimit, or provide for legislation to limit, such appeals. Theexpense of any appeal to the Privy Council in London hadbeen a deterrent: in any year, there had never been morethan a handful.[10] Nonetheless, by the 1980s the possi-bility of appeal from a State supreme court was seen asoutdated.In addition, in 1978 confusion over the relative preceden-tial value of High Court and Privy Council decisions hadbeen introduced when the High Court ruled that it wouldno longer be bound by Privy Council decisions.[11]

Constitution s 74 has not been amended, and the Consti-tution cannot be amended by legislation.[4] Nonetheless, s11 of theAustralia Act goes as far as legislatively possible,to make s 74 a dead letter. Thus, for practical purposes,the Australia Act has eliminated the remaining methodsof appeal to the Privy Council.[12]

4 Passage and proclamation of theAct

The plan to revamp both federal and State constitutionalarrangements required each State parliament to pass itsown enabling legislation. The long title of these StateActs (such as the Australia Acts (Request) Act 1985 ofNew South Wales) was An Act to enable the constitu-tional arrangements aecting the Commonwealth and theStates to be brought into conformity with the status of theCommonwealth of Australia as a sovereign, independentand federal nation. The body of each State Act set outthe States request and consent as to both the Australianand the UK versions of the Australia Act.The Governor-General of Australia, Sir Ninian Stephen,assented to the Australia Act (Cth) In the name of HerMajesty on 4 December 1985.[13] Queen Elizabeth IIassented to the Australia Act 1986 (UK) on 7 Febru-ary 1986. Then, visiting Australia, at a ceremony heldin Government House, Canberra, on 2 March 1986 theQueen signed a proclamation that the Australia Act (Cth)would come into force at 5 am Greenwich Mean Time onthe following day.[14] Thus the two versions of the Aus-tralia Act would commence simultaneously, the UK ver-sion at 0500 GMT in the UK and the Australian versionat 1600 AEST in Canberra. Her Majesty presented tothe presiding Australian Prime Minister, Bob Hawke, thesigned copy of the proclamation, along with the Assentoriginal of the UK Act (image above).[15]

At the time, the Commonwealth, State and UKActs wereknown as the Australia Acts. However, the State Actshave performed their function and the expression Aus-tralia Act(s)" is now used to refer only to the Common-wealth and UK Acts.

5 The Act and Australian indepen-dence

The principal dierence between the Commonwealthand UK versions of the Australia Act lies in the reference,appearing in the long title and preamble to the Common-wealth version but not present in the UK version, to Aus-tralia as a sovereign, independent and federal nation.While this might be understood as a declaration of in-dependence, it can also be understood as an acknowl-edgement that Australia was already independent, leav-ing open the question of when independence had beenattained. There is no earlier declaration or grant of inde-pendence.The High Court in Sue v Hill in 1999[16] did not rely uponthe long title or the preamble, which conventionally donot have force of law. But it decided that the eect of theAustralia Act 1986 (Cth) was that, at least from the datewhen the Act came into operation, Britain had become a

3foreign power within the meaning of Constitution sec-tion 44(i), so that a parliamentary candidate who hadBritish nationality was ineligible to be a member of theCommonwealth Parliament.That view was taken in Sue v Hill by three members ofthe Court, supported with misgivings by one other mem-ber. One of those who did not nd it necessary to expressan opinion on this point, Justice Michael Kirby, was in alater case to deliver a dissent in which he argued that theAustralia Act 1986 (Cth) was invalid (Attorney-General(WA) v Marquet (2003) 217 CLR 545). Constitution s106 guarantees that a State constitution may be alteredonly in accordance with its own provisions,[17] hence notby the Commonwealth Parliament. However, both ver-sions of theAustralia Act contain amendments to the con-stitutions of Queensland (s 13) and Western Australia (s14). In Kirbys view in Marquet (2003),[18] this was in-consistent with Constitution s 106, so that the AustraliaAct (Cth) was not a valid exercise of Commonwealth leg-islative power. A majority, however, thought that it wassucient that the Act had been passed in reliance on Con-stitution s 51(xxxviii), which gives the Commonwealthparliament power to legislate at the request of the Stateparliaments.Soon afterwards, however, in Shaw (2003),[19] the wholeCourt (including Kirby) took a more comprehensiveview: that the Australia Act in its two versions, togetherwith the State request and consent legislation, amountedto establishing Australian independence at the date whenthe Australia Act (Cth) came into operation, 3 March1986.

6 See also Australia: Constitution of Australia Canada: Canada Act 1982; Constitution Act 1982 New Zealand: New Zealand Constitution Act 1986

7 Notes[1] The Australian version has not been amended since; the

UK version has been amended only as to an element ofUK law, without eect in Australia.

[2] Commonwealth of Australia Constitution Act 1900, re-ferred to in Australia as (UK) or (Imp), for Imperial.It continues to apply in Australia by paramount force orby adoption.

[3] Statute of Westminster Adoption Act 1942 (Cth); the adop-tion was backdated, with mainly symbolic eect, to theoutbreak of World War II in 1939.

[4] Neither version of theAustralia Act could change the Con-stitution; that can be done only through a national referen-dum, under Constitution s 128. The referendum process

is very dicult; as of 2011, only 8 out of 44 proposals putto referendum have been approved.

[5] There is no equivalent provision as to the Common-wealth. However, for both the Commonwealth and theStates, constitutional convention eectively excludes themonarch from any personal exercise of governmentalpower. The 1986 proclamation was an exception, ap-proved by Australian ministers.

[6] Privy Council (Limitation of Appeals) Act 1968, whichended all appeals to the Privy Council in matters involvingfederal legislation; Privy Council (Appeals from the HighCourt) Act 1975, which prohibited almost all types of ap-peal from the High Court.

[7] Colonial Sugar Rening Co Ltd v Attorney-General (Cth)(1912) 15 CLR 182.

[8] Whitehouse v Queensland (1961) 104 CLR 635.

[9] Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159CLR 461.

[10] AustLII. Privy Council Appeals. Retrieved 14 March2013.

[11] Viro v R (1978) 141 CLR 88.

[12] Appeals were still being lodged up to the last moment.The nal such appeal, an equity case from the Court ofAppeal of the Supreme Court of New South Wales, wascomprehensively dismissed by the Privy Council on 27July 1987: Austin v Keele [1987] UKPC 24 (No. 65 of1986).

[13] Australia Act 1986 (Cth ) Assent original. Retrieved 15December 2013.

[14] Commonwealth of Australia Gazette No S 85 of 2 March1986.

[15] Elizabeth II as Queen of Australia signs the proclamation.Retrieved 15 December 2013.

[16] Sue v Hill (1999) 199 CLR 462.

[17] This would normally be through a referendum of the peo-ple of the State.

[18] Attorney-General (WA) v Marquet (2003) 217 CLR 545.

[19] Shaw v Minister for Immigration and Multicultural Aairs(2003) 218 CLR 28.

8 References Editors, Sovereignty and independence - Australia -severance of residual links with the United Kingdom- proclamation of the Australia Act 1986" (1984-1987) 11 Australian Year Book of International Law171-174. Retrieved 15 December 2013

Tony Blackshield and George Williams, AustralianConstitutional Law and Theory (Annandale, Feder-ation P., 5th edn 2010), pp 138145. ISBN 978-1-86287-773-3

4 9 EXTERNAL LINKS

Twomey, Anne, The Australia Acts 1986: Aus-tralias Statutes of Independence (Annandale, Fed-eration P., 2010). ISBN 978-1-86287-807-5

Twomey, Anne, The Chameleon Crown: The Queenand Her Australian Governors (Annandale, Federa-tion P., 2006) ISBN 978-1-86287-629-3

9 External links Text of the Australia Act 1986 as in force today (in-cluding any amendments) within the United King-dom, from the UK Statute Law Database .

Australian ocial texts: Privy Council (Limitation of Appeals) Act 1968(Cth). Retrieved 3 June 2011

Privy Council (Appeals from the High Court)Act 1975 (Cth). Retrieved 3 June 2011

Australia Act 1986 (Cth). Retrieved 3 June2011

Australia Acts (Request) Act 1985 (NSW). Re-trieved 3 June 2011

Privy Council appeals: Privy Council Appeals from Australia (up to1980 only, from AustLII). Retrieved 5 June2011

Privy Council Decisions (complete, fromBAILII). Retrieved 5 June 2011

National Archives of Australia, Documenting aDemocracy":

Commonwealth of Australia Constitution Act1900 (Imp). Retrieved 3 June 2011

Australia Act 1986 (Cth). Retrieved 3 June2011

Queen Elizabeth II signs the Proclamation ofthe Australia Act (Cth), 1986. Retrieved 3June 2011

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UK and Australian legislationGovernment in Australian statesAppeals to the Privy CouncilPassage and proclamation of the ActThe Act and Australian independenceSee alsoNotesReferencesExternal linksText and image sources, contributors, and licensesTextImagesContent license