Australia Act 1986
The Australia Act 1986 is the name given to 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. 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.1
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 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, when adopted by Australia in 1942.3 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. 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.
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).4
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.5
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 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. 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;6 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 1912.7 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".8 In 1985, the High Court unanimously observed that the power to grant such a certificate "has long since been spent" and is "obsolete".9
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.10 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.11
Constitution s 74 has not been amended, and the Constitution cannot be amended by legislation.4 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.12
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. Queen Elizabeth II assented to the Australia Act 1986 (UK) on 7 February 1986. 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 5 am Greenwich Mean Time on the following day. She presented Australian Prime Minister Bob Hawke 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 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 199913 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. Constitution s 106 guarantees that a State constitution may be altered only in accordance with its own provisions,14 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's view in Marquet (2003),15 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),16 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.
- 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.
- 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.
- Statute of Westminster Adoption Act 1942 (Cth); the adoption was backdated, with mainly symbolic effect, to the outbreak of World War II in 1939.
- 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.
- 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.
- Privy Council (Limitation of Appeals) Act 1968, which ended all appeals to the Privy Council in matters involving federal legislation; Privy Council (Appeals from the High Court) Act 1975, which prohibited almost all types of appeal from the High Court.
- Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CLR 182.
- Whitehouse v Queensland (1961) 104 CLR 635.
- Kirmani v Captain Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461.
- AustLII. "Privy Council Appeals". Retrieved 14 March 2013.
- Viro v R (1978) 141 CLR 88.
- 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  UKPC 24 (No. 65 of 1986).
- Sue v Hill (1999) 199 CLR 462.
- This would normally be through a referendum of the people of the State.
- Attorney-General (WA) v Marquet (2003) 217 CLR 545.
- Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28.
- Australia: Constitution of Australia
- Canada: Canada Act 1982; Constitution Act 1982
- New Zealand: New Zealand Constitution Act 1986
- Tony Blackshield and George Williams, Australian Constitutional Law and Theory (Annandale, Federation P., 5th edn 2010), pp 138–145. ISBN 978-1-86287-773-3
- Twomey, Anne, The Australia Acts 1986: Australia's Statutes of Independence (Annandale, Federation P., 2010). ISBN 978-1-86287-807-5
- Twomey, Anne, The Chameleon Crown: The Queen and Her Australian Governors (Annandale, Federation P., 2006) ISBN 978-1-86287-629-3
- Official text of the Australia Act 1986 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database .
- 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:
- National Archives of Australia, "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