Australia Act 1986
Legislation ending UK legislative and judicial power over Australia.
The Australia Act 1986 is the short title of a pair of separate but related pieces of legislation, one enacted by the Parliament of Australia and the other by the Parliament of the United Kingdom. These nearly identical acts eliminated the ability for the United Kingdom to legislate with effect in Australia, to be involved in any Australian government, and for an appeal from any Australian court to a British court. They formally severed all legal ties between Australia and the United Kingdom, coming into effect simultaneously on 3 March 1986.
Quick Facts
- Legislature
- Parliament of Australia
- Citation
- Cth
- num_act
- aa1986114
- Australia Act 1986
- Royal assent
- 4 December 1985
- Date commenced
- 3 March 1986
Facts from the source article.
Background
The Commonwealth of Australia was formed in 1901 by the federation of six British colonies, each becoming a state. The Constitution of Australia, contained in a British statute, provided for a Commonwealth Parliament with legislative power on specified topics, but the United Kingdom Parliament retained ultimate legislative power in relation to Australia. The UK Parliament's power to legislate for the Commonwealth itself was mostly ended with the Statute of Westminster 1931, adopted by Australia in 1942 retroactive to 1939, which provided that no future UK act would apply to a dominion as part of its law unless the Act expressly declared the dominion had requested and consented. However, this provision only affected UK laws applying as part of Australian Commonwealth law, not those applying as part of the law of any Australian state. Thus, the UK Parliament still had power to legislate for the states, though this was almost never exercised. For instance, after a 1933 referendum in Western Australia where 68% of voters favoured secession, the British government refused to intervene. The UK Government maintained certain powers over the states until the passage of the acts, such as vetoing the appointment of a Tasmania premier to be governor in 1958 and advising the New South Wales government in 1979 that the Queen would be advised not to assent to bills considered unconstitutional. In the 1980s, Canada, Australia, and New Zealand all began severing their last constitutional links to the United Kingdom, with Canada patriating its constitution in the Constitution Act 1982 and New Zealand experiencing a constitutional crisis in 1984.
The act
The Australia Act 1986 removed the UK Parliament's authority to pass laws that would form part of Australian law, whether for the Commonwealth, a state, or a territory. It also meant that no state law could be invalidated for conflicting with a UK law that had overriding force in Australia; states gained the ability to repeal or change such existing UK laws as they applied to them. The monarch could no longer disallow or reserve state laws, though this power oddly remains for Commonwealth legislation. British government involvement in governing Australian states was ended, and only a state premier could advise the monarch on appointing or removing a state governor. Governors received the power to exercise all royal functions except appointing the governor, and the monarch could not exercise those powers unless physically present in the state. Section 15 outlines how the Australia Act or the Statute of Westminster 1931 can be amended or repealed as part of Australian law: the Commonwealth Parliament must act with the request or agreement of all state parliaments. As of 2020, neither law has been amended this way. Section 11 of the Australia Act does everything possible through legislation to render Section 74 of the Constitution ineffective, effectively ending all remaining avenues for appealing to the Privy Council.
Legacy
The principal difference between the Commonwealth and UK versions of the Australia Act lies in the reference in the long title and preamble of the Commonwealth version to Australia as a sovereign, independent and federal nation, which is not present in the UK version. In Sue v Hill in 1999, the High Court decided that the effect of the Australia Act 1986 (Cth) was that, at least from the date the act came into operation, Britain had become a foreign power within the meaning of Constitution section 44(i), making a parliamentary candidate with British nationality ineligible for the Commonwealth Parliament. This view was taken by three members of the High Court, supported with misgivings by one other. Justice Michael Kirby later dissented in Marquet (2003), arguing that section 6 of the Australia Act 1986 (Cth) was invalid because it amended state constitutions inconsistently with section 106 of the Australian Constitution, but a majority thought it sufficient that the act had been passed in reliance on Constitution s 51(xxxviii) at the request of state parliaments. In Shaw v Minister for Immigration and Multicultural Affairs (2003), the High Court held that the act gave voice to the completion of Australia's evolutionary independence and was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom.
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