Australia Act 1986

Last updated

Coat of Arms of Australia.svg
This article is part of a series on the
politics and government of
Australia
Flag of Australia.svg Australiaportal
Australia Act 1986
Coat of Arms of Australia.svg
Parliament of Australia
An Act to bring constitutional arrangements affecting the Commonwealth and the States into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation
Citation Act No. 142 of 1985
Enacted by Parliament of Australia
Royal assent 4 December 1985
Commenced3 March 1986
Status: Current legislation
Australia Act 1986
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An Act to give effect to a request by the Parliament and Government of the Commonwealth of Australia
Citation 1986 c. 2
Dates
Royal assent 17 February 1986
Commencement 3 March 1986
Text of statute as originally enacted
Revised text of statute as amended
Photo of the Australia Act 1986 (United Kingdom) document located in Parliament House, Canberra Australia Act 1986.jpg
Photo of the Australia Act 1986 (United Kingdom) document located in Parliament House, Canberra

The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth (i.e. federal) Parliament of Australia, the other an Act of the Parliament of the United Kingdom. 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, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. The Acts came into effect simultaneously.

An act of parliament, also called primary legislation, are statutes passed by a parliament (legislature). Act of the Oireachtas is an equivalent term used in the Republic of Ireland where the legislature is commonly known by its Irish name, Oireachtas. The United States Act of Congress is based on it.

Parliament of Australia legislative branch of the Commonwealth of Australia

The Parliament of Australia is the legislative branch of the government of Australia. It consists of three elements: the Crown, the Senate and the House of Representatives. The combination of two elected chambers, in which the members of the Senate represent the states and territories while the members of the House represent electoral divisions according to population, is modelled on the United States Congress. Through both chambers, however, there is a fused executive, drawn from the Westminster system.

Parliament of the United Kingdom Supreme legislative body of the United Kingdom

The Parliament of the United Kingdom of Great Britain and Northern Ireland, commonly known internationally as the UK Parliament, British Parliament, or Westminster Parliament, and domestically simply as Parliament or Westminster, is the supreme legislative body of the United Kingdom, the Crown dependencies and the British Overseas Territories. It alone possesses legislative supremacy and thereby ultimate power over all other political bodies in the UK and the overseas territories. Parliament is bicameral but has three parts, consisting of the Sovereign, the House of Lords, and the House of Commons. The two houses meet in the Palace of Westminster in the City of Westminster, one of the inner boroughs of the capital city, London.

Contents

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. [1]

UK and Australian legislation

The Commonwealth of Australia was formed in 1901 by federation of six British colonies, each of which became a State. The Commonwealth Constitution 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. [2] The United Kingdom Parliament retained ultimate legislative power in relation to Australia.

Constitution of Australia United Kingdom legislation

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

The UK Parliament's power to legislate with effect for the Commonwealth itself was mostly ended with the Statute of Westminster 1931, when adopted by Australia in 1942 retroactive to 1939. [3] 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. Until then, Australia had legally been a self-governing colony of the United Kingdom, but with the adoption of the Statute became a (mostly) sovereign nation. [4]

Statute of Westminster 1931 United Kingdom legislation

The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom whose modified versions are now domestic law within Australia and Canada; it has been repealed in New Zealand and implicitly in former Dominions that are no longer Commonwealth realms. Passed on 11 December 1931, the act, either immediately or upon ratification, effectively both established the legislative independence of the self-governing Dominions of the British Empire from the United Kingdom and bound them all to seek each other's approval for changes to monarchical titles and the common line of succession. It thus became a statutory embodiment of the principles of equality and common allegiance to the Crown set out in the Balfour Declaration of 1926. As the statute removed nearly all of the British parliament's authority to legislate for the Dominions, it had the effect of making the Dominions largely sovereign nations in their own right. It was a crucial step in the development of the Dominions as separate states.

Statute of Westminster Adoption Act 1942 Act of the Parliament of Australia, currently registered as C2004C00661

The Statute of Westminster Adoption Act 1942 is an Act of the Australian Parliament that formally adopted sections 2–6 of the Statute of Westminster 1931, an Act of the British Imperial Parliament enabling the total legislative independence of the various self-governing Dominions of the British Empire. The Statute of Westminster further restricted the ability of the Parliament of the United Kingdom to legislate for the Dominions.

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. Thus, the Parliament of the United Kingdom still had the power to legislate for the states and territories. In practice, however, this power was almost never exercised. For example, in a referendum on secession in Western Australia in April 1933, 68% of voters favoured seceding from Australia and becoming a separate Dominion. The state government sent a delegation to Westminster to request that this result be enacted into law, but the British government refused to intervene on the grounds that this was a matter for the Australian government. As a result of this decision in London, no action was taken in Canberra or Perth.

States and territories of Australia first-level subdivision of Australia

The states and territories are the first-level administrative divisions of the Commonwealth of Australia. They are the second level of government in Australia, located between the federal and local government tiers.

Canberra capital city of Australia

Canberra is the capital city of Australia. Founded following the federation of the colonies of Australia as the seat of government for the new nation, it is Australia's largest inland city and the eighth-largest city overall. The city is located at the northern end of the Australian Capital Territory; 280 km (170 mi) south-west of Sydney and 660 km (410 mi) north-east of Melbourne.

Perth City in Western Australia

Perth is the capital and largest city of the Australian state of Western Australia (WA). It is named after the city of Perth, Scotland and is the fourth-most populous city in Australia, with a population of 2.06 million living in Greater Perth. Perth is part of the South West Land Division of Western Australia, with the majority of the metropolitan area located on the Swan Coastal Plain, a narrow strip between the Indian Ocean and the Darling Scarp. The first areas settled were on the Swan River at Guildford, with the city's central business district and port (Fremantle) both later founded downriver.

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). [5]

Monarchy of Australia Form of government in Australia

The monarchy of Australia concerns the form of government in which a hereditary king or queen serves as the nation's sovereign and head of state. Australia is governed under a form of constitutional monarchy, largely modelled on the Westminster system of parliamentary government, while incorporating features unique to the Constitution of Australia. The present monarch is Elizabeth II, styled Queen of Australia, who has reigned since 6 February 1952. She is represented in Australia as a whole by the Governor-General, in accordance with the Australian Constitution and letters patent from the Queen, and in each of the Australian states, according to the state constitutions, by a governor, assisted by a lieutenant-governor. The monarch appoints the Governor-General and the governors, on the advice respectively of the Commonwealth government and each state government. These are now almost the only constitutional functions of the monarch with regard to Australia.

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. [6]

Appeals to the Judicial Committee of 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 was established, one of whose functions was to hear appeals from the State supreme courts. The draft of the Constitution, that was put to voters in the various colonies and presented to the British government for embodiment in UK legislation, was that there was to be no appeal from the High Court to the Privy Council in any matter involving the interpretation of the Constitution or of the Constitution of a State, unless it involved the interests of some other dominion. [7] However, the British insisted on a compromise. [8] [9] Section 74 of the Constitution as enacted by the Imperial Parliament, [10] provided two possibilities of appeal. There could be an appeal if the High Court issued a certificate that it was appropriate for the Privy Council to determine an inter se matter, i.e. a matter that concerned the constitutional relations between the Commonwealth and one or more States or between two 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; [11] [12] 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. [13] In 1961, delivering on behalf of the whole Court a brief dismissal of an application for a certificate, Chief Justice Sir Owen 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". [14] In 1985, the High Court unanimously observed that the power to grant such a certificate "has long since been spent" and is "obsolete". [15]

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. [16] 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. [17]

Constitution s 74 has not been amended, and the Constitution cannot be amended by legislation. [5] 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. [18]

Passage and proclamation of the Act

Disagreement existed as to whether the Commonwealth Parliament alone had sufficient authority to enact the Australia Act under s 51(xxxviii) of the Constitution, or whether an additional Act of the UK Parliament would be required. Hence, to put the legal status of the Act beyond doubt, it was decided that the UK and Australian parliaments would each enact the Australia Act in substantially similar forms. [19] [20]

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) 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 body of each State Act set out the State's "request and consent" as to both the Australian and 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 Her Majesty" on 4 December 1985. [21] However, Queen Elizabeth II was to visit Australia early in 1986 and, in acknowledgement of Australian sensibilities, it was arranged that she would assent to both versions of the Act and then proclaim them so that they would come into force at the same moment in both countries. She assented to the Australia Act 1986 (UK) on 17 February 1986 and on 24 February proclaimed that it would come into force at 0500 Greenwich Mean Time on 3 March. [22] Then, visiting Australia, at a ceremony held in Government House, Canberra, on 2 March 1986 the Queen signed a proclamation that the Australia Act (Cth) would come into force at 0500 GMT on 3 March. [23] Thus, according to both UK law and Australian law, the two versions of the Australia Act would commence simultaneouslythe UK version at 0500 GMT in the UK and, according to the time difference, the Australian version at 1600 AEST in Canberra. [24] The ceremony was presided over by the Australian Prime Minister, Bob Hawke, to whom the Queen presented the signed copy of the proclamation, along with the Assent original of the UK Act (image above). [25]

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 in Sue v Hill in 1999 [26] 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), so that a parliamentary candidate who had British nationality was ineligible to be a member of the Commonwealth Parliament.

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. [27] Constitution s 106 guarantees that a State constitution may be altered only in accordance with its own provisions, [28] hence not by the Commonwealth Parliament. However, both versions of the Australia Act contain amendments to the constitutions of Queensland (s 13) and Western Australia (s 14). In Kirby J's view in Marquet (2003), [27] 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), [29] 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.

See also

Notes

  1. The Australian version has not been amended since; the UK version has been amended only as to an element of UK law, without effect in Australia.
  2. Commonwealth of Australia Constitution Act 1900, referred to in Australia as (UK) or (Imp), for "Imperial". It continues to apply in Australia by "paramount force" or by adoption.
  3. Statute of Westminster Adoption Act 1942 (Cth) Federal Register of Legislation; the adoption was backdated, with mainly symbolic effect, to the outbreak of World War II in 1939.
  4. Southern Centre of Theosophy Inc v South Australia [1979] HCA 59 , (1979) 145 CLR 246(22 November 1979), High Court at p 257 per Gibbs J: " It was not until the passing of the Statute of Westminster Adoption Act 1942 (Cth) that the Commonwealth itself finally cast off its colonial status, and even then, within the meaning of earlier Imperial statutes, it remained a 'British possession'."
  5. 1 2 Neither version of the Australia Act could change the Constitution; that can be done only through a national referendum, under Constitution s 128. The referendum process is very difficult; as of 2011, only 8 out of 44 proposals put to referendum have been approved.
  6. There is no equivalent provision as to the Commonwealth. However, for both the Commonwealth and the States, constitutional convention effectively excludes the monarch from any personal exercise of governmental power. The 1986 proclamation was an exception, approved by Australian ministers.
  7. See for example "Australasian Federation Enabling Act 1899 No 2 (NSW)" (PDF). NSW Parliamentary Council's Office.
  8. JA La Nauze (1972). The Making of the Australian Constitution. Melbourne University Press. p. 253.
  9. John M Williams (2015). "Ch 5 The Griffith Court". In Dixon, R; Williams, G (eds.). The High Court, the Constitution and Australian Politics. Cambridge University Press. ISBN   9781107043664.
  10. "Commonwealth of Australia Constitution Act 1900 (Imp)" (PDF).
  11. Privy Council (Limitation of Appeals) Act 1968 (Cth), which ended all appeals to the Privy Council in matters involving federal legislation
  12. Privy Council (Appeals from the High Court) Act 1975 (Cth), which prohibited almost all types of appeal from the High Court.
  13. Colonial Sugar Refining Co Ltd v Attorney-General (Cth) [1912] HCA 94 , (1912) 15 CLR 182.
  14. Whitehouse v Queensland [1961] HCA 55 , (1961) 104 CLR 635.
  15. Kirmani v Captain Cook Cruises Pty Ltd (No 2) [1985] HCA 27 , (1985) 159 CLR 461.
  16. AustLII. "Privy Council Appeals" . Retrieved 14 March 2013.
  17. Viro v R [1978] HCA 9 , (1978) 141 CLR 88.
  18. Appeals were still being lodged up to the last moment. The final such appeal, an equity case from the Court of Appeal of the Supreme Court of New South Wales, was comprehensively dismissed by the Privy Council on 27 July 1987: Austin v Keele [1987] UKPC 24 , Privy Council (on appeal from NSW).
  19. Watts, A. D. (January 1987). "The Australia Act 1986". International and Comparative Law Quarterly. 36 (1): 132–139. doi:10.1093/iclqaj/36.1.132. JSTOR   760463.
  20. Lee, H. P. (December 1988). "The Australia Act 1986 - Some Legal Conundrums" (PDF). Monash University Law Review. 14 (4): 298–2. Retrieved 17 February 2019.
  21. Australia Act 1986 (Cth ) Assent original. Retrieved 15 December 2013.
  22. "Australia Act (Commencement) Order 1986" (PDF). Retrieved 23 January 2016.
  23. Commonwealth of Australia Gazette No S 85 of 2 March 1986.
  24. Anne Twomey, The Chameleon Crown (2006), 258–9.
  25. Elizabeth II as Queen of Australia signs the proclamation. Retrieved 15 December 2013.
  26. Sue v Hill [1999] HCA 30 , (1999) 199 CLR 462.
  27. 1 2 Attorney-General (WA) v Marquet [2003] HCA 67 , (2003) 217 CLR 545.
  28. This would normally be through a referendum of the people of the State.
  29. Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 , (2003) 218 CLR 28.

Related Research Articles

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, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Australian constitutional law

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.

<i>R v Kirby; Ex parte Boilermakers Society of Australia</i>

R v Kirby; Ex parte Boilermakers' Society of Australia, known as the Boilermakers' Case, was a 1956 decision of the High Court of Australia which considered the powers of the Commonwealth Court of Conciliation and Arbitration to punish the Boilermakers' Society of Australia, a union which had disobeyed the orders of that court in relation to an industrial dispute between boilermakers and their employer body, the Metal Trades Employers' Association.

Judiciary of Australia

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the States and territories of Australia, regulations promulgated by the Executive, and the common law of Australia arising from the decisions of judges.

Section 51(i) of the Australian Constitution enables the Parliament of Australia to make laws about:

Section 51(v) of the Constitution of Australia is a subsection of Section 51 of the Constitution of Australia that gives the Australian Parliament power to legislate on "postal, telegraphic, telephonic, and other like services".

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.

<i>Re Wakim; Ex parte McNally</i>

Re Wakim; Ex parte McNally was a significant case decided in the High Court of Australia on 17 June 1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the vesting of state companies law jurisdiction in the Federal Court.

Commonwealth v Bank of New South Wales, was a Privy Council decision that affirmed the High Court of Australia's decision in Bank of New South Wales v Commonwealth, promoting the theory of "individual rights" to ensure freedom of interstate trade and commerce. The case dealt primarily with Section 92 of the Constitution of Australia.

<i>Kirmani v Captain Cook Cruises Pty Ltd</i> (No 2)

Kirmani v Captain Cook Cruises Pty Ltd , was a decision of the High Court of Australia on 17 April 1985 concerning section 74 of the Constitution of Australia. The Court denied an application by the Attorney-General of Queensland seeking a certificate that would permit the Privy Council to hear an appeal from the High Court's decision in Kirmani v Captain Cook Cruises Pty Ltd .

Australian corporate law

Australian corporations law has historically borrowed heavily from UK company law. Its legal structure now consists of a single, national statute, the Corporations Act 2001. The statute is administered by a single national regulatory authority, the Australian Securities and Investments Commission (ASIC).

Section 99 of the Constitution of Australia, is one of several important non-discrimination provisions that govern actions of the Commonwealth and the various States.

<i>Colonial Sugar Refining Co Ltd v Attorney-General</i> (Cth)

Colonial Sugar Refining Co Ltd v Attorney-General (Cth), is the only case in which the High Court issued a certificate under section 74 of the Constitution to permit an appeal to the Privy Council on a constitutional question. The Privy Council did not answer the question asked by the High Court, and the court never issued another certificate of appeal.

<i>Deakin v Webb</i> legal case heard in the High Court of Australia in 1904

Deakin v Webb was one of a series of cases concerning whether the States could tax the income of a Commonwealth officer. The High Court of Australia overruled a decision of the Supreme Court of Victoria, holding that the States could not tax the income of a Commonwealth officer. This resulted in conflict with the Privy Council, a conflict which was ultimately resolved by the passage of Commonwealth law in 1907, that permitted the States to tax the income of a Commonwealth officer. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' Case.

<i>Baxter v Commissioners of Taxation</i> (NSW)

Baxter v Commissioners of Taxation (NSW), and Flint v Webb, were the last of a series of cases concerning whether the States could tax the income of a Commonwealth officer which had resulted in conflict between the High Court and the Privy Council. The two cases were heard together, however two separate judgments were issued with Baxter v Commissioners of Taxation (NSW) addressing the substantive issues, and Flint v Webb addressing the applications for a certificate to appeal to the Privy Council. The judgement of Griffith CJ in Flint v Webb suggested two ways in which that conflict could be resolved. Both suggestions were adopted by the Commonwealth Parliament by legislation that permitted the States to tax the income of a Commonwealth officer, and gave the High Court exclusive appellate jurisdiction on such constitutional questions. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' case.

References