Australia Act 1986 - AbsoluteAstronomy.com

The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act

Act of Parliament

An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

of the Commonwealth (i.e. federal) Parliament of Australia

Parliament of Australia

The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...

, the other an Act of the Parliament of the United Kingdom

Parliament of the United Kingdom

The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

. While each Act gives its short title as "Australia Act 1986", in Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, to come into effect simultaneously, because of uncertainty as to which of the two parliaments had the ultimate authority to do so.

The Australia Act (Cth and UK) eliminated the remaining possibilities for the UK to legislate with effect in Australia, for the UK to be involved in Australian government, and for an appeal from any Australian court to a British court.

UK and Australian legislation

The Commonwealth of Australia

Australia

Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

was formed in 1901 by federation of six British colonies, each of which became a State

States and territories of Australia

The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...

. The Commonwealth Constitution

Constitution of Australia

The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...

provided for a Commonwealth Parliament, with legislative power on a range of specified topics, leaving the residue of legislative power to the States. That constitution was (and still is) contained in a British statute. Australia remained a self-governing colony; the United Kingdom Parliament retained full, ultimate legislative power with regard to Australia.

The UK Parliament's power to legislate with effect for the Commonwealth itself was mostly ended with the Statute of Westminster 1931

Statute of Westminster 1931

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...

, when adopted by Australia

Statute of Westminster Adoption Act 1942

The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the legislative independence of the various self-governing Dominions of the British Empire...

in 1942. The Statute provided (s 4) that no future UK Act would apply to a Dominion (of which Australia was one) as part of its law unless the Act expressly declared that the Dominion had requested and consented to it. However, s 4 of the Statute only affected UK laws that were to apply as part of Australian Commonwealth law, not UK laws that were to apply as part of the law of any Australian State

States and territories of Australia

.

The Australia Act ended all power of the UK Parliament to legislate with effect in Australia - that is, "as part of the law of" the Commonwealth, a State or a Territory (s 1). Conversely, no future law of a State would be void for inconsistency with (being "repugnant to") any UK law applying with "paramount force" in Australia; a State (like the Commonwealth) would have power to repeal or amend such an existing UK law so far as it applied to the State (s 3). State laws would no longer be subject to disallowance or suspension by the Queen (s 8) - a power that, anomalously, remains for Commonwealth legislation (Constitution ss 59 and 60).

Government in Australian states

Similarly, the Australia Act removed the power of the British government to be involved in the governing of an Australian State (ss 7 and 10). Specifically, only the State Premier could now advise the Queen on appointment or removal of a State Governor. Nonetheless, the Queen could still exercise any of her powers with respect to the State if she was "personally present" in the State.

Appeals to the Privy Council

At federation in 1901, the supreme court of each colony became the supreme court of that State. In 1903, a High Court of Australia

High Court of Australia

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

was established, one of whose functions was to hear appeals from the State supreme courts.

The draft of the Constitution that was presented to the British government for embodiment in UK legislation had provided that the High Court would be Australia's final court of appeal. However, the British obtained a compromise. Constitution s 74 provided two possibilities of appeal from the High Court to the Privy Council

Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

. There could be an appeal if the High Court issued a certificate that the matter was "inter se", i.e. that it concerned constitutional relations between the Commonwealth and one more States or between one or more States. And there could be an appeal with permission of the Privy Council. The Commonwealth Parliament was empowered to legislate to limit the latter path and it did so in 1968 and 1975; but legislation could only limit, not abolish.

Predictably, the High Court proved reluctant to grant certificates for appeal to the Privy Council. The discretion was exercised only once, in 1912. In 1961, delivering on behalf of the whole Court a brief dismissal of an application for a certificate, Chief Justice Sir Owen Dixon

Owen Dixon

Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...

said: "experience shows - and that experience was anticipated when s. 74 was enacted - that it is only those who dwell under a Federal Constitution who can become adequately qualified to interpret and apply its provisions". In 1985, the High Court unanimously observed that the power to grant such a certificate "has long since been spent" and is "obsolete".

Although the path of appeal from the High Court to the Privy Council had been effectively blocked, the High Court could not block appeals from State supreme courts directly to the Privy Council. Nor did the Constitution limit, or provide for legislation to limit, such appeals. The expense of any appeal to the Privy Council in London had been a deterrent: in any year, there had never been more than a handful. Nonetheless, by the 1980s the possibility of appeal from a State supreme court was seen as outdated.

In addition, in 1978 confusion over the relative precedential value of High Court and Privy Council decisions had been introduced when the High Court ruled that it would no longer be bound by Privy Council decisions.

Constitution s 74 has not been amended, and the Constitution cannot be amended by legislation. Nonetheless, s 11 of the Australia 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 methods of appeal to the Privy Council.

Passage and proclamation of the Act

The plan to revamp both federal and State constitutional arrangements required each State parliament to pass its own enabling legislation. The long title of these State Acts (such as the Australia Acts (Request) Act 1985 of New South Wales

New South Wales

New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...

) was "An Act to enable the constitutional arrangements affecting the Commonwealth and the States to be brought into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation".

The Governor-General of Australia

Governor-General of Australia

The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...

, Sir Ninian Stephen

Ninian Stephen

Sir Ninian Martin Stephen, is a retired politician and judge, who served as the 20th Governor-General of Australia and as a Justice in the High Court of Australia.-Early life:...

, assented to the Australia Act (Cth) "In the name of Her Majesty" on 4 December 1985. Queen Elizabeth II assented to the Australia Act 1986 (UK) on 7 February 1986. Then, visiting Australia

Royal visits to Australia

Since 1867, there have been over fifty visits by a member of the Royal Family to Australia, though only six of those came before 1954. Elizabeth II is the only reigning monarch of Australia to have set foot on Australian soil; she first did so on 3 February 1954...

, at a ceremony held in Government House, Canberra

Government House, Canberra

Government House, Canberra, commonly known as Yarralumla, is the official residence of the Governor-General of Australia. It is located in the suburb of Yarralumla, in the City of Canberra, in the Australian Capital Territory....

, on 2 March 1986 the Queen signed a proclamation that the Australia Act (Cth) would come into force at 5 am Greenwich Mean Time

Greenwich Mean Time

Greenwich Mean Time is a term originally referring to mean solar time at the Royal Observatory in Greenwich, London. It is arguably the same as Coordinated Universal Time and when this is viewed as a time zone the name Greenwich Mean Time is especially used by bodies connected with the United...

on the following day. She presented Australian Prime Minister Bob Hawke

Bob Hawke

Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....

with the signed copy of the proclamation, as well as the Assent original of the UK Act (image above).

At the time, the Commonwealth, State and UK Acts were known as the "Australia Acts". However, the State Acts have performed their function and the expression "Australia Act(s)" is now used to refer only to the Commonwealth and UK Acts.

The Act and Australian independence

The principal difference between the Commonwealth and UK versions of the Australia Act lies in the reference, appearing in the long title and preamble to the Commonwealth version but not present in the UK version, to Australia as "a sovereign, independent and federal nation". While this might be understood as a declaration of independence, it can also be understood as an acknowledgement that Australia was already independent, leaving open the question of when independence had been attained. There is no earlier declaration or grant of independence.

The High Court

High Court of Australia

in Sue v Hill
Sue v Hill
Sue v Hill was an Australian court case decided in the High Court of Australia on 23 June 1999. It concerned a dispute over the apparent return of a candidate, Heather Hill, to the Australian Senate in the 1998 federal election...

in 1999 did not rely upon the long title or the preamble, which conventionally do not have force of law. But it decided that the effect of the Australia Act 1986 (Cth) was that, at least from the date when the Act came into operation, Britain had become a "foreign power" within the meaning of Constitution section 44(i)

Section 44 of the Australian Constitution

Section 44 of the Australian Constitution is a section of the Constitution of Australia that deals with restrictions on who may become a candidate for election to the Parliament of Australia...

, so that a parliamentary candidate who had British nationality was ineligible to be a member of the Commonwealth Parliament

Parliament of Australia

.

That view was taken in Sue v Hill by three members of the Court, supported with misgivings by one other member. One of those who did not find it necessary to express an opinion on this point, Justice Michael Kirby, was in a later case to deliver a dissent in which he argued that the Australia Act 1986 (Cth) was invalid. Constitution s 106 guarantees that a State constitution may be altered only in accordance with its own provisions, hence not by the Commonwealth Parliament. However, both versions of the Australia Act contain amendments to the constitutions of Queensland

Queensland

Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...

(s 13) and Western Australia

Western Australia

Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...

(s 14). In Kirby's view in Marquet (2003), this was inconsistent with Constitution s 106, so that the Australia Act (Cth) was not a valid exercise of Commonwealth legislative power. A majority, however, thought that it was sufficient that the Act had been passed in reliance on Constitution s 51(xxxviii), which gives the Commonwealth parliament power to legislate at the request of the State parliaments.

Soon afterwards, however, in Shaw (2003), the whole Court (including Kirby) took a more comprehensive view: that the Australia Act in its two versions, together with the State request and consent legislation, amounted to establishing Australian independence at the date when the Australia Act (Cth) came into operation, 3 March 1986.

External links

. Retrieved 3 June 2011

Australian official 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 June 2011
- Australia Acts (Request) Act 1985 (NSW). Retrieved 3 June 2011

Privy Council appeals:
- Privy Council Appeals from Australia (up to 1980 only, from AustLII). Retrieved 5 June 2011
- Privy Council Decisions (complete, from BAILII). Retrieved 5 June 2011

National Archives of Australia
National Archives of Australia
The National Archives of Australia is a body established by the Government of Australia for the purpose of preserving Commonwealth Government records. It is an Executive Agency of the Department of the Prime Minister and Cabinet and reports to the Cabinet Secretary, Senator Joe Ludwig.The national...

, "Documenting a Democracy":
- Commonwealth of Australia Constitution Act 1900 (Imp). Retrieved 3 June 2011
- Australia Act 1986 (Cth). Retrieved 3 June 2011
- Queen Elizabeth II signs the Proclamation of the Australia Act (Cth), 1986. Retrieved 3 June 2011