The Australia Act 1986

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The Australia Act 1986 1  is often raised by OPCA adherents in Australia as having replaced the Commonwealth Constitution 2 without referendum. This is factually incorrect as it was more to do with the States relationship with the UK not the Commonwealth. The theory is based on a misconception of the changes to constitutional relations between Australia and the UK that had already occurred decades earlier. As stated in the preamble, its purpose was:

“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.”

The Australia Acts were put in place to give the States the power to create and amend their own constitutions (just as UK Parliament can), and to properly separate UK law from the law of the Australian States. By their introduction, they solved a legal problem that occurred with the Balfour Declaration 19263 and the Statute of Westminster Act 1931, 4 where the UK declared they will no longer legislate for ‘the dominions’ (Canada, India, New Zealand, Australia etc).

While the Statute of Westminster Adoption Act 1942 5 cut legislative ties between the Federal Parliament and UK Parliament, UK law from before the Statute of Westminster Act that was intended for the States (or former Colonies), and UK law in general, was still able to be used for State affairs. UK Acts that were around before 1931 were stuck in a kind of legal ‘time warp’, where even if UK Parliament repealed a UK Act it would still apply to State law. For instance, many Australian states were still using old UK shipping laws in 1931 and never bothered to write their own. When the UK amended their shipping Acts the amendments had no effect on Australian law (since the UK declared they would no longer legislate for the dominions, they could also no-longer repeal or amend the laws of the dominions), some Australian states were still stuck in the old laws, which caused havoc with trade disputes, resulting in many a judge putting their head through a wall in frustration.

Another problem was that State courts could bypass the High Court in appeals and go straight to the Privy Council in the UK, causing further headaches in Australia’s court system, since the High Court still had to answer to the UK privy council. But perhaps the most frustrating issue was that the states were ‘stuck’ with outdated constitutions from the pre-1900s which neither they or UK parliament could change, even with referendum or any  constitutional law witchery. In legal terms, the Australian law system was in a tangled mess that no parliament in the world had the power to solve. In almost Monty Python hilarity, the UK couldn’t even undo their own error, as they had legally bound themselves to not legislate for any of the dominions.

In the end, the solution was found in Section 51 (xxxviii) which allowed Federal Parliament a ‘one off’ exercise of power equal to UK parliament, if they had permission from the state parliaments. The State parliaments passed various Acts allowing the Federal Parliament the ‘one off’ ability to exercise the power of the UK, and the UK and Australia passed the Australia Acts 1986 (Cth/UK).

This made the State Constitutions Officially Australian property, and gave Australia complete independence from the UK (except the Commonwealth Constitution, which remains a UK Act to protect the very important Section 128.) 7 It also cut the Privy Council out of the States court system, continuing from previous legislation that enabled this on a federal level. All appeals to the Privy Council from Australian courts exercising federal jurisdiction were abolished in 1968 (Privy Council (Limitation of Appeals/Act 1968 (Cth) and all appeals from any decision of the High Court (other than those where a certificate might be granted under section 74 of the Constitution) were terminated by the Privy Council (Appeals from the High Court) Act 1975 (Cth). See article regarding Appeals to the UK Privy Council.

The parliament did not require the use of section 128, because the Australia Act did not alter any part of the Commonwealth Constitution, nor was there any intention of altering the Constitution, as stated in the Australia Act itself, in Section 58

Commonwealth Constitution, Constitution Act and Statute of Westminster not affected 

5. Sections 2 and 3 (2) above – (a) are subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth; and  (b) do not operate so as to give any force or effect to a provision of an Act of the Parliament of a State that would repeal, amend or be repugnant to this Act, the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth or the Statute of Westminster 1931 as amended and in force from time to time.”

While it is true that Justice Michael Kirby delivered a dissent in Attorney-General (WA) v Marquet (2003) HCA 67  9 this was not due to a lack of a section 128 referendum. He argued that the Australia Act was invalid because section 106 10 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 (section 13) and Western Australia (section 14). In Kirby’s view was that this was inconsistent with Constitution section 106, so that the Australia Act 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 section 51(xxxviii), which gives the Commonwealth parliament power to legislate at the request of the State parliaments.

Click to access attorney-general-wa-v-marquet-2003-hca-67.pdf

Soon afterwards, however, in  Shaw v Minister for Immigration and Multicultural Affairs (2003) HCA 72, 11 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 came into operation, 3 March 1986. Kirby J. (from 108):

“In Attorney-General (WA) v Marquet (2003) 202 ALR 233 I expressed my reservations about the validity of the relevant parts of the Australia Acts invoked in that case. I contested the proposition that, in 1986, the United Kingdom Parliament had any legislative power to enact a law with respect to Australia’s constitutional arrangements. Such power in my view belongs, and in 1986 belonged, only to the Australian people and their legislatures. So far as the federal Act is concerned, the stream could not rise higher than the source. It could not enlarge federal constitutional power or make it greater than it was. Nor, in my opinion, did s 51(xxxviii) of the Constitution provide a source for the validity of the federal Act. That Act was subject to the provisions of Chs III and V of the Constitution, including provisions with respect to the States and the requirements of s 128 concerning alteration of the Constitution. However, in Marquet, my view was not adopted by the majority of this Court.  Pending a greater enlightenment, I must accept this Court’s holding that the Australia Acts are valid laws.”

Click to access shaw-v-minister-for-immigration-and-multicultural-affairs-2003-hca-72.pdf

These two decisions from the High Court are referred to whenever the contention arises in any other court in Australia disputing the validity of the Australia Acts, as has occurred many times in the Supreme Courts of the States. You can locate these cases on this website under the Tag “Australia Acts 1986“. One of the most recent cases was in  Commonwealth Bank of Australia v Haughton [2020] SASC 135 where the binding nature of these decisions on the Supreme Court of that State is apparent. 12 The court held that the applicant submitted nothing that would challenge the outcome in Marquet, nor the ruling later made in Shaw v Minister for Immigration and Multicultural Affairs, and reminded the applicant that:

“Even if this is merely regarded as seriously considered dicta of the High Court, it remains binding on me, Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2010) 230 CLR 89, [134] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).”

Click to access commonwealth-bank-of-australia-v-haughton-2020-sasc-135.pdf


The Timeline

The Australia Act (Cth) was passed in reliance on section 51(xxxviii) of the Commonwealth Constitution, which gives the Commonwealth Parliament power to legislate at the request and consent of the State parliaments.

The Governor-General of Australia, Sir Ninian Stephen, assented to the Australia Act (Cth) In the name of Her Majesty according to section 58 of the Commonwealth Constitution, on 4 December 1985, which would come into force on a date to be fixed by Proclamation. 13

Queen Elizabeth II personally assented to the Australia Act 1986 (UK) on 17 February 1986, which would come into force on a date to be fixed by Proclamation. 14

On 24 February 1986 she proclaimed that the Australia Act 1986 (UK) would come into force at 0500 Greenwich Mean Time on 3 March. 15

Visiting Australia, at a ceremony held in Government House, Canberra, on 2 March 1986, Queen Elizabeth II signed a Proclamation that the Australia Act (Cth) would come into force at 0500 GMT on 3 March 1986. (See Commonwealth of Australia Gazette No S 85 of 2 March 1986, page 87) 16

Thus, according to both UK law and Australian law, the two versions of the Australia Act would commence simultaneously—the UK version at 0500 GMT in the UK and, according to the time difference, the Australian version at 1600 AEST in Canberra.

Queen then presented the signed copy of the Proclamation, along with the Assent original of the Australia Act 1986 (UK) to the then Australian Prime Minister Bob Hawke. As seen here Elizabeth II personally signed the Proclamation to bring the Australia Act into law herself. 17


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For the sake of completion, I’ll address Wayne Glew‘s remarks that the Royal Sign Manual on the Australia Act 1986 is a forgery, because it reads “Elyabeth” instead of “Elizabeth”. What he is looking at is not a “y” but a “z” in stylized cursive writing. There’s also her Royal Sign Manual from the Office of Governor-General of the Commonwealth of Australia (Amendment) 2003 19 and the Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia 21 August 2008 20 for comparison. The point seems quite moot anyway, considering she is photographed signing the Proclamation.

There is also the misconception that the Royal Sign Manual being placed on the top of the document somehow invalidates the document and her “permission”, or oversight. There’s a group of links to do with the proper placing of the royal sign manual in the article Governor General – Letters Patent.

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