Talk:Australia Act 1986

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I removed a statement declaring that the Australia Acts were modelled after the Canada Act. This is hardly true. About the only similarity between the two is that they were both based on legislation requested and consented by the national parliaments of the countries concerned—which was a compromise on the part of NSW and the Commonwealth on the one hand, and Britain, Queensland and Western Australia on the other—and that they stopped the British government from being able to pass law for Australia and Canada, respectively. Some major differences:

  • The Australia Acts were initiated by the States. The Canada Act was largely the work of the Canadian Prime Minister, Pierre Trudeau.
  • The Australia Acts were essentially concerned with the status of the States. As far as the Commonwealth was concerned, it had separated far enough from Britain that any further separation could be achieved without British legislation. The Canada Act essentially amended and patriated the Canadian Constitution.
  • The Australia Acts were plural: A British act, required by the States to limit the Commonwealth's ability to amend the Australia Act (Cth) or the Statute of Westminster without agreement of all states, or the Commonwealth or the States' ability to amend the
  • The Australia Acts were requested and consented to by all the States after coming to a compromises with the Queen, the Commonwealth, the British Government and all the States. The Canada Act was requested and consented by only the Canadian Parliament, and indeed one Canadian province did not agree to it. The British Government had ruled out a change to the State constitutions unless they were unanimous (and had done so, consistently, since the earliest days of the federation).

The article has been improved (at one time it suggested did it not that Australia was a colony after 1901, which is nonsensical, and about as correct as saying the 13 colonies are still British colonies as the British Parliament retains a theoretical right to amend their laws (I am a constitutional lawyer and barrister by the way).

Firstly, most state constitutions don't have a referendum requirement.
Secondly, as you mentioned it's a matter of sovereignty. The Imperial Parliament could still amend the Commonwealth of Australia Constitution Act, but as it has been widely decided that Westminster has the power to give up sovereignty, such a change to the Act would only have effect on English law, and Australian courts would only be bound by the version the Commonwealth actually uses and accepts.
Disclaimer: IANAL, and this is off the top of my head. If you have any legislation or case law that proves this wrong, please tell me!
I also have nothing to say about the Canada Acts. ajdlinux | utc 06:39, 23 September 2007 (UTC)

I base my comments largely on Anne Twomey's The Chamelon Crown: The Queen and her Australian Governors (2006, Sydney: Federation Press).

Felix the Cassowary 14:10, 13 August 2007 (UTC)

I'm travelling at the moment so I'm not often able to reply --- my apologies.
I'm not sure what the relevance of your first statement is. The modifications to the Qld and WA constitutions was explicitly performed because they had a requirement for a referendum in order to change the respective parts. But the British government could make the change if it wanted.
As for the second part, Australian courts might have found that a British change had no affect on the Australian constitution at that point, but the whole point of the matter was to make sure it didn't. No law the British government had passed had given up that power, before the Australia Act. A simple face-reading of the laws as they stood would have indicated that yes, the British could; but as we had a gradual evolution into independence I don't know that a simple face-reading of the laws is the one the High Court would've made. Of course, the correct response was to pass laws at the Commonwealth and British/Imperial level — as happened.
Felix the Cassowary 21:21, 2 October 2007 (UTC)
For the state constitutions, I've only actually read the NSW constitution. Perhaps the Qld and WA constitutions actually do have referenda requirements.
(I do realise that until the Australia Acts Britain (legally) related to the States individually almost like colonies and Governors were appointed on British advice.)
It has been held for a very long time that Westminster can give up sovereignty, even by A.V. Dicey who said it couldn't bind its own hands. I think the real effect of the Act was that no Act of the Imperial Parliament could have any effect in Australia, however the transfer of sovereignty had already occurred and the Constitution had already established itself as only modifiable by referendum and not in itself subject to British laws. I don't dispute that Britain could legislate on other matters but I believe the transfer of sovereignty made the Commonwealth Constitution a separate matter, only subject to itself. ajdlinux | utc 02:36, 3 October 2007 (UTC)
One of the points of the Australia Acts was to rule out future alteration of the Australian Constitution by the British Parliament - 'patriation' of the constitution. It was not disputed that before 1986 the British Parliament could have directly altered the Constitution of Australia Act, and that the change would have had proper effect in Australian law. In many ways, it can be argued that before 1986 Australia wasn't a fully sovereign entity - this was the final piece in the jigsaw.
Furthermore, these laws are not binding on the British Parliament, and it they were amended or repealed then the British Courts would recognise that change. However, as the Australian legal system and courts are now fully divorced, they wouldn't pay any heed to any action of the British Parliament.
Mauls 00:22, 18 October 2007 (UTC)
What about the Statute of Westminster Adoption Act 1942? ajdlinux | utc 03:39, 23 October 2007 (UTC)

──────────────────────────────────────────────────────────────────────────────────────────────────── The UK Parliament has no limit on its powers and could legislate for France if it wished, inbdeed that was proposed in 1940, when Prime Minister Churchill proposed merging Britain and France after the latter's military defeat.

I agree the 1986 Act probably impliedly repeals s. 74 of the Australian Constitution but there was no referendum, ie the Australian Constitution's internal amendment mechanism was by-passed. On any view it was a sloppy piece of drafting. I respectfully disagree with the Australian High Court by the way - there is no doctrine of deseutude in common law and s. 74 of the Constitution remains law until it is repealed.

The UK Parliament can amend the Australia Act if it wishes, as can the Australian and state parliaments. None of the legislation has been entrenched, nor did it enact any major constitutional amendments.

The references to the Privy Council imply it is a British court - it isn't, it's a Commonwealth court. You don't have to be a British judge to sit on it (I remember a few years ago, when I was an immigration judge, trying to get a distinguished Ugandan High Court judge appointed).

I am in correspondence with Professor Twomey and I am aware of her view that Australia did not become truly independent until 1986, but I strongly albeit respectfully disagree. Australia became independent in 1901.

Some constitutional links with Britain remain. Australia's Head of State is determined in accordance with British or imperial law, ie the Act of Settlement, Australian citizens may vote in British elections and become peers, ie sit in the House of Lords, like Lord Casey, a famous Australian statesman and Australia and Britain share the same Head of State, ie the Queen, God Bless Her!

I also made a comment that the comment requiring a national referendum to amend the constitution is Dubious. The Constitution remained an Imperial Act, and the Westminster Parliament can't limit its own powers (neither can Australian parliaments, hence Britain's Australia Act): And the Australia Act (UK) modified the Queensland and Western Australian constutions, which otherwise required state referenda. The Commonwealth constitution was not amended because the Commonwealth wouldn't consent to it. It was a political matter of sovereignty, not a legal matetr. (The Australia Act (Cth) of course couldn't modify the Commonwealth Constitution, and this article largely seems to ignore the existence of the British act, so perhaps this causes the confusion.)— Preceding unsigned comment added by (talk)

Privy Council appeals from the High Court[edit]

It seems to me that Section 74 of the Constitution (High Court able to grant permission to appeal inter-se constitutional disputes to the Queen in Council) is implicitly repealed by Section 11 of the Australia Act (Imp) - "no appeal to Her Majesty in Council lies or shall be brought, whether by leave or special leave of any court or of Her Majesty in Council or otherwise, and whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise, from or in respect of any decision of an Australian court."

As the High Court is an Australian court, and both the Constitution Act and the Australia Act are from the same parliament, and therefore at an equal level, the later Act would overrule the earlier - i.e. Section 74 of the Constitution is no longer in effect. Mauls 00:44, 18 October 2007 (UTC)

P.S. Note that the changes to the State constitutions removing the route of appeal from state supreme courts to the Privy Council weren't done by amendments to the original acts - just this single s.11 overlay onto the existing laws. Similar Privy Council appeal clauses will still remain in the state constitutions unless separately removed. Mauls 01:02, 18 October 2007 (UTC)
That's not the case. The Australia Acts did not amend the Constitution. The position on s 11 was stated by the joint judgment of Gleeson CJ, Gummow & Hayne JJ in the 1999 case of Sue v Hill (text of the judgment):

"The Australia Act also provided, in s 11, for the termination of appeals from or in respect of any decision of an Australian court brought to the Privy Council, whether by virtue of any Act of the Parliament of the United Kingdom, the Royal Prerogative or otherwise. When this legislation is taken with the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth), the result is to leave only that avenue for appeal to the Privy Council which is identified in s 74 of the Constitution. With a certificate from this court, s 74 permits appeals from a decision of this court upon any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States."

They went on to discuss the 1985 case Kirmani v Captain Cook Cruises (No 2), in which a certificate was refused and the court made statements to the effect that the jurisdiction "has long since been spent" and for practical purposes is no longer relevant. So I have reverted your changes, although I did improve on the old text to make the position clearer. --bainer (talk) 03:19, 18 October 2007 (UTC)

Appointment of Australians to the Privy Council[edit]

We've abolished appeals to the Privy Council, but I'm wondering if there's any technical reason why an Australian can't still be appointed as a member of the Privy Council. Did the Australia Acts prevent this happening, or is just that it's become the practice, certainly for our Prime Ministers, not to accept such appointments if offered. -- JackofOz (talk) 06:17, 10 December 2007 (UTC

The Australia Acts had the effect of making Australian citizens foreign nationals in relation to the UK - it would be up to the British Government to determine who they would appoint - either way it would be of no real interest to Australia. Lejon (talk) 03:53, 6 April 2008 (UTC)

The introduction refers to "an appeal from any Australian court to a British court". Technically that is wrong. There were no appeals to British courts, and never had been. There was the right to appeal to the Queen in council - i.e. the Privy Council. But that is not a British so much as a Commonwealth court.

It always was up to the British government to appoint Privy Councillors - whether Australians were technically foreigners or not. Those are separate issues. However the Australian government could also nominate Privy Councillors - as it still can. If the Australian government advised the Queen to appoint an Australian to the privy council, it would happen.Royalcourtier (talk) 04:07, 4 October 2013 (UTC)

Independence, nationhood, colonies, etc[edit]

" Another function of the Australia Act was to establish some form of independence to the states of Australia. Imperial Acts such as the Statute of Westminster 1931 granted the Commonwealth of Australia various degrees of nationhood, but failed to apply to the State Governments. Because of this, prior to the passage of the Australia Act, these states essentially remained colonies under the British Crown. For example, the British government retained the right to advise the monarch on her choice of state governors."

The above passage could be quite misleading - the Statute did not grant " various degrees of nationhood " (?) It granted an increased level of autonomy to one of the Empires self governing British Dominions . The States could not " essentially remain colonies " after the Statute because they were not colonies before the Statute - they ceased to be colonies at Federation and became the ' States ' of the Commonwealth ie the component parts of the Commonwealth . Nothing in the Statute of Westminster returned the states to colonial status . The sovereignty of the Westminster parliament remained over the Commonwealth of Australia after the Statute of Westminster ( and its adoption ) and it could pass a law that would be upheld by the Australian Courts - as long as the ' manner and form ' provisions were complied with ie request and consent was obtained .

The Australia Acts did not deliver " some form of independence " to the States . The States remain component parts of the Commonwealth and their Constitutions remain ' subject to this Constitution ' ie subject to the Constitution of the Commonwealth . ````Lejon 4 Feb 09

While the colonies did indeed become states in 1901, it is by no means certain that the "Australia" of which they became component parts was not still a colony. In other words, one single unified colony replaced 6 former colonies. That was how it was generally regarded for many years after 1901. Just exactly when Australia ceased being a colony and achieved real sovereignty - if it ever has - is still a matter of debate. But I'm not sure this is 100% relevant to the point you're making. -- JackofOz (talk) 23:39, 2 February 2009 (UTC)
The Commonwealth was described in 1901 as a 'self-governing colony', but by 1907 the name used was 'dominion'. The constituent colonies of the Commonwealth were however, designated 'states' by the Constitution. AS Jack says, it is more helpful to talk in terms of sovereignty rather than independence.--Gazzster (talk) 01:44, 3 February 2009 (UTC)

Very breifly Australia was classed as a colony in 1901 ( in fact it was the ' colony within the Empire ' - Bawick J ) . In 1907 it was called a Dominion at an Imperial Conference ie not legaly .It was still classed as a Colony though .

In 1931 it was classified as a Dominion ( with Dominion Status ) ie a new constitutional status . And the new status was legal . Australia was then a Dominion with Dominion status and could no longer be described as a Colony by British (UK) laws see S.11 of Stat of W .

The Aus Acts terminated all ability of the Brit parliament to legislate for Australia which it previously had . And stated that Australia had ( from then on ) the STATUS of a Sov Indep Federal Nation . Lejon —Preceding unsigned comment added by (talk) 04:35, 3 February 2009 (UTC)

My point is - the above passage in the article is wrong .

1. " various degrees of Nationhood " were not granted to Australia . An increase in AUTONOMY was granted to a British Dominion .

2. the Australia Acts did not establish ANY form of independance to the States .

Lejon 6 Feb 09 —Preceding unsigned comment added by (talk) 02:08, 6 February 2009 (UTC)

Well independence is probably not the best word to use. But technically, the governors of the states were responsible not to the Queen of Australia before 1986, but to the Queen of the United Kingdom. Right, they're the same person.But the Queen of Australia is represented by the Governor-general, advised by the Federal Executive Council. The Queen of the United Kingdom is advised by the Secretary of State for Foreign Affairs and the Commonwealth of the United Kingdom. Even now, the situation is ambivalent: are the state governors responsible to the Queen of Australia? No, for the Federal Executive Council has no constitutional authority to advise the state crowns. The governors are advised by the state councils. So have six separate crowns, independent of the federal Crown of Australia, been created by the Australia Act? things are still not crystal clear, beyond the certainty that the Parliament of the UK has no power over Australia. Better to avoid making any conclusions by using words like 'nationhood' or 'independence'. Let us simply state the facts--Gazzster (talk) 03:45, 6 February 2009 (UTC)

If the States had separate Crowns they would be separate Nations which of course they are not . The real question is not who advises the Governor but in whos name does the Governor give his/her assent ? The Queen has only two relevant legal Titles 1. the Queen of the UK or 2. the Queen of Australia - the Queen has no other legal Titles . The Queens Australian Title is held with the 'assent ' of the Commonwealth Government .

There is no Queen of any State ( and the concept has been rejected by the High Court ). The State councils can only advise the Governor on State matters and the Governor can only give assent in the name of the Queen of Australia . Both Commonwealth and State levels of government are subject to the Constitution and the constitutions of the States 'continue - subject to the Constitution ( of the Commonwealth ) And a state law can not be ' repugnant ' to a Commonwealth law or it is void . So much for the States 'Crowns' (?) . The myth of State ' Sovereignty' is spin designed to 'protect' State rights and to make the change to a republic more ' confusing ' . The thing to remember is that in relation to Autralia which includes the States - the Queen has only one Title ie Queen of Australia . Lejon —Preceding unsigned comment added by (talk) 06:08, 6 February 2009 (UTC)

If the States had separate Crowns they would be separate Nations which of course they are not .
That doesn't follow in any way. Malaysia is a federation composed of clearly distinct monarchies which each of separate kings (or sultans); formerly, the Holy Roman Empire was a more complex situation with non-independent monarchies. There is no reason Australia can't have its own special constitutional anomolies difficult to discuss in the simplistic terms an encyclopedia is expected to have.
Nevertheless state laws in Australia have long recognised the Queen in right of that state, and the Commonwealth government is no more able to advise the Queen on the appointment of a state Governor than they are to advise the Queen on the appointment of the Governor-General of New Zealand.
Concerning the High Court, I have not seen their reasoning rejecting the notion that there might be a Queen of a state, but this occurred before the Australia Acts which substantively changed the state constitutions, so until I do I reject the notion that it has ongoing significance. The British Government during the creation of the Australia Acts were concerned the states' plan might inadvertantly create six extra Queens, a concern that was not addressed when the plan was adopted. Also, the number of titles the Queen has is quite irrelevant—her role as Queen of Australia was independent of her role as Queen of the United Kingdom for years before she had a distinct Australian title. From what I've seen of laws relevant to the states, they're (deliberately?) ambiguous, referring to Her Majesty and the Queen, and never the Queen of Australia.
No-one who claims there are seven crowns in Australia is claiming the states are independent countries, nor is anyone who says (ambiguously) that the states became independent of the United Kingdom in 1986.
(Incidentally, another commenter says that the Governors represented the Queen of the United Kingdom before 1986—it's my understanding they actually represented the British government before that date.)
Felix the Cassowary 08:15, 7 February 2009 (UTC)

The Malaysian federation would not be directly transposible to the Australian situation . They may have each had distinct monarchs prior to Federation . But that's a separate study .

The Australian colonies did not have separate monarchs prior to Federation and don't have separate monarchs now - there is no anomaly .Here is a quote from the Constitutional Centenary Foundation ( Fact Sheet 2.1 Issue 2 The Head of State P.16 ) " The Queen is head of state of each State , in her role as Queen of Australia . " That document was written in 1999 and mentions the Australia Acts .

You are right the High Court decisions I have were made over a long period of time and prior to 1986 but while the Australia Acts ' substantively changed ' the State Constitutions they did not separate them from the Commonwealth .

If no one who claims that there are seven crowns in Australia is not claiming the States are independent then what are they claiming ? The Royal Styles and Titles are relevant because there is no ' Her majesty ' or ' Queen ' per se . The Queen can act in right of a state but it is the person occupying the office of the Queen of Australia who is doing the acting . Lejon (talk) 12:08, 7 February 2009 (UTC)Lejon 7 Feb 09

The point I and others have tried to make is that the situation is ambiguous. The constitutional lawyer Anne Twomey has referred to the constitutional ambiguity, notably in her book 'The Chamaeleon Crown'. Of course, the Australia Act works. No problem there. But what does it mean? That's the question. --Gazzster (talk) 06:05, 15 February 2009 (UTC)

Yes Gazzter I know what Anne Twomey is saying - I have a copy of her book and have read it . In my humble opinion it has more holes than a swiss cheese . Masses of research don't necessarily make the ' conclusion ' correct . The whole exercise is to push ' States rights ' and to create a perception of ' confusion ' where none exists . Or to push Australias Constitutional arrangements back to pre 'Engineers ' . The myth or social construct is being developed that the States are independant political entities . Even some of the State government websites state that the States are ' Sovereign ' which either means that they are exaggerating ( spinning ) or are woefully ignorant of the meaning of the word Sovereign . You would know Greg Cravens ' theory ' that Australia is a Heptarchy or 7 Constitutional Monarchies - its not of course . There is only one Constitutional Monarchy and one Monarch and that single Monarch is represented in each state by a Governor who gives 'assent ' in that single Monarchs name . There is no ' Queen of any State ' a concept tested and rejected by the Courts of Australia . There is no ' generic ' Queen . The only Queen that exists as far as Australia is concerned is the ' Queen of Australia ' which is a separate legal and Constitutional position from the ' Queen of the UK ' . The States have ' access ' to the Queen of Australia - but only on matters within the specified and restricted authority of that state and nothing more . When the Queen of Australia ( through ) the Governor gives assent to a state law - that is what is meant by the term the Queen is acting - ' in right of that state ' . It does not mean that the Queen ( in the palace ) is acting ' separately ' in right of that state .

I will try and dig out some relevant quotes . Lejon —Preceding unsigned comment added by Lejon (talkcontribs) 10:24, 15 February 2009 (UTC)

Cool. I'd be interested. I think though that the states are sovereign. The Constitution does not deprive them of sovereignty; the colonies abdicated some of their powers to the federal government when they became states. But the Commonwealth does not have sovereign power over the states. It has been established that if Australia became a republic the states would have to initiate their own legislation to end the status of the Crown (or not, if they chose not to).--Gazzster (talk) 11:46, 15 February 2009 (UTC)

Before federation New South Wales was not a sovereign polity. It was a British colony, a self-governing colony but not a sovereign body. Upon federation it lost some of its powers of self-government, because of the assignment to the new polity, the Commonwealth, of the capacity to make laws on topics defined by the Constitution. Before federation dominium and imperium in the territorial sea adjacent to the British colony New South Wales belonged to the British Crown as the sovereign of the colonial territory in international law. That position was not altered by federation. The former Australian colonies became States in the new Commonwealth : but of course not sovereign States. That term is sometimes heard : but clearly it is wrong : and nothing is added to political stature by a false description, which is perhaps the result of a supposed analogy, obviously fallacious in law and in historical fact, with the States of the United States of America. (at p222) This language points the contrast with the Australian States. At no time was any of them an "independent sovereign". They were once dependencies of Britain. They are now States in the Australian Commonwealth, having all the independant authority which the Constitution allows, but no international status. The States have never exercised "absolute and unquestioned sway" over any territory. - - WINDEYER J Bonser v La Macchia 1969

36. The States have no international personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other international persons and no right to deal with other countries, through agents or otherwise. Their claims to international personality or to sovereignty are groundless --- MURPHY J NSW v COMMONWEALTH 1975

. The Australian Constitution was an Act of the Imperial Parliament. Covering cl. 9 gave effect to the agreement of the people of the Australian colonies to unite in one indissoluble union. It conformed to the wishes of those people by enacting a federal constitution. A new colonial polity was brought into existence. There was no statement of the territory of the new entity, the Commonwealth of Australia. But it is evident that it was the sum of the colonial territory which had been placed under government by the Imperial authorities, with a territorial boundary ending at low-water mark. On the passage of the Imperial Act, those colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss. 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Constitution of the Commonwealth. But those constitutions and the powers of the States were subjected to the Australian Constitution. They were not the same as they had been before federation. The constitutions were continued "subject to this Constitution". The federal nature of the Constitution is seen in the distribution of constitutional power between the new Commonwealth and its constituent States, specific legislative topics being assigned to the Commonwealth and the residue to the States, paramountcy being given to Commonwealth laws where inconsistency with State laws exists. That residue is only discoverable when the full extent of Commonwealth power has been elucidated -- BARWICK CJ NSW V COMMONWEALTH 1975

State parliaments are subject to the national Constitution as well as their state constitutions. A federal law overrides any state law not consistent with it. FROM DFAT - RELATIONS BETWEEN LEVELS OF GOVERNMENT ( current )

Gazzter the above are just a few snippets -- the Commonwealth Government can initiate a S.128 referendum which can change the Constitution if passed by the people . The last referendum if passed would have removed all reference to the Queen from the Constitution but the Constitution itself - other than those references - would have remained . The States would have remained 'parts of ' the Commonwealth - as per the Constitution . The Governor of a State gives their assent in the name of the Queen of Australia - remove the Queen of Australia and how does a state then pass law ? The States would have no choice .

For one or more States to ' go it alone ' would require another S.128 referendum to allow that State to break away from the indissoluable Commonwealth ------- good luck . Lejon (talk) 23:19, 14 March 2009 (UTC)

That the States of Australia were pr-existent commonwealths does not mean that after federation they retain an existence independent of the Commonwealth . They might have done if there had been reservations to their submission to the ( second order ) Commonwealth There were none . There are no limits to the power of S. 128 of the Constitution . That is a power of the Commonwealth . That power might be used to abolish the States . In that event it would be true to say that the Commonwealth ( for the S.128 legislature is an organ of the Commonwealth ) was abolishing the States . Certainly there are some matters in S.128 ( relating to their representation in parliament ) where States have an individual power of veto . But this does not establish their independence from the Commonwealth . This is not a right against the Commonwealth Constitution : it is a right within it . M .J. DETMOLD ' The Commonwealth ' Lejon (talk) 00:02, 26 February 2009 (UTC)

An interesting article on the West Australian attempt to seceede is worth a read in regard to the status of the States in the Commonwealth -- -- Lejon (talk) 00:40, 11 March 2009 (UTC)

An interesting examination of the use of the term ' states ' from Quick & Garran .. ( quoting Burgess )

" Federal significance -- The term 'State' has also a special meaning when applied to a federal system . In federal nomenclature a State is one of a number of communities formerly autonomous and self - governing , such as the States of America , and the States of Germany which have agreed to transfer a portion of their political power to a union of the States , in the governing operations of which they retain an active share . Internationaly such communities have no status as States ; they are States only in a titular sense . " The old States become parts of the government in the new State , and nothing more . It is no longer proper to call them States at all . In fact it is only a title of honour., without any coresponding substance " ( Burgess , Political Sc., 1 ., p. 80 ) Lejon (talk) 04:17, 6 April 2009 (UTC)

And Michael Stokes ( senior lecturer in law University of Tasmania ) in an article titled ' Are there separate State Crowns ' - ' in the Sydney Law Review ( 5 ) 1998 -- ' As the States are completely subject to the Constitution it is clear that the states are part of the people politicaly organised which the Constitution creates rather than separate entities which predate and stand outside the political organisation . Lejon (talk) 00:37, 14 April 2009 (UTC)

UK - Australia[edit]

So does the UK not have and power in Australia what-so-ever now? Flosssock1 (talk) 19:15, 31 October 2009 (UTC)

No (assuming I understood your vaguely worded question). -- JackofOz (talk) 19:56, 31 October 2009 (UTC)
Oh, sorry, I don't know how I ended up wording it like that. So the UK no longer has the slightest bit of power or say in anything that Australia does. Infact what about their say in things that other independent nations do? Flosssock1 (talk) 12:57, 1 November 2009 (UTC)
By "the UK", do you mean "the British/UK government"? The British/UK government certainly has no say in Australian affairs. This hasn't really been the case since the appointment of Sir Isaac Isaacs as Governor-General. The UK government tried to intervene and have King George V appoint Birdwood instead, but James Scullin stood firm and demanded the king accept the advice of his Australian Prime Minister. There was still, however, the theoretical possibility that the UK Parliament could legislate to amend the Australian Constitution and get its way that way. The Australia Act put even that theoretical possibility to rest. However, what power the UK government may still have with other Commonwealth realms is not something I can talk about with confidence. What power it has over other countries of the Commonwealth, or countries not even in the Commonwealth, would be zero, I imagine. But this has nothing to do with the Australia Act, so you'd be best advised to ask your question elsewhere. -- JackofOz (talk) 20:50, 1 November 2009 (UTC)
Yes I did. And thanks, but theres just one last thing. I don't know about her power within the Australian government but in the UK there is no law or legislation over what our queen can do within the British government. Over time the role of the British monarch within the British government has come from him/her being advised by his/her ministers and him/her at the front, to today, where the monarch only advises her ministers and they make all the major decisions. But as I said, there is no written law or act etc over what she could do. Effectively she could be a dictator, if she wanted to be. However, more to the point, if the same applies to her position within the Australian government (or any other Commonwealth Realm for that matter) then surely she could shift power from one countries government to anothers. Not saying that she would ofcourse, but it would be possible wouldn't it? Flosssock1 (talk) 21:51, 1 November 2009 (UTC)
See Monarchy of Australia#Constitutional role. "By the Australia Act 1986, the monarch's only role in the federal sphere is the appointment of the Governor-General... the written constitution of Australia places most executive power in the hands of the Governor-General." Road Wizard (talk) 22:44, 1 November 2009 (UTC)
In the UK the Sovereign is constitutionally one with his or her Parliament. She has no authority without it. The sovereign therefore may not refuse assent to its acts. The same is true in Australia, where the Constitution describes Parliament as the Queen, Senate and House of Representatives. In neither the UK nor Australia may the Queen act independently of her Parliament. If she were so mad as to do so, Parliament would be rent asunder. In 1936 Edward VIII was wondering whether to act against the will of his Parliament(in bothe the UK and Australia). Constitutionally, he could not do so, and so abdicated.--Gazzster (talk) 01:08, 2 November 2009 (UTC)


To describe the preamble to the 1986 Act as a "declaration of independence" is rather strange. The preamble to an Act has no legal affect, it was not intended to have the effect of making Australia independent, and if that was the intention it was too late. Australia has been independent since as early as 1901.Royalcourtier (talk) 04:17, 4 October 2013 (UTC)

I was with you until the last sentence. The six colonies federated in 1901 to form a unified entity with a national government, but every good source will tell you that its status did not really change. The colonies all had their own governments prior to 1901, but that didn't stop them being colonies. There has been a huge amount of discussion in the literature about when Australia became independent. Various dates have been suggested, from Australia's acceptance as a member at the League of Nations in 1920, through to the 1986 Australia Act, but virtually nobody thinks it was 1 January 1901. The general consensus is there is no specific date, but independence was attained gradually over a long time. By 1986, we were certainly independent, but it may well have been reached at some earlier juncture. -- Jack of Oz [pleasantries] 05:58, 4 October 2013 (UTC)
I think the statement is accurate. A declaration of independence does not have to be in any particular legal form. So it can take the form of a statutory preamble, notwithstanding that the preamble does not have the effect of a section of the statute.
It is certainly wrong to suppose that Australia became independent upon federation in 1901, at the very least because Australia found itself at war with Germany in 1914 because Britain had declared war on behalf of the Empire. What happened in 1901, as Jack says, was that six colonies united into one colony; there was a rearrangement of British sovereignty in Australasia. Looking back from the present, the prevailing view seems to be that Australia has been independent at least since the Australia Acts in 1986, but there is no consensus upon any particular earlier date. Membership of the League of Nations is one candidate. Another is 1942, with the passing of the Statute of Westminster Adoption Act. Still another is the creation of an Australian citizenship with effect from 1949.
The issue of independence was reviewed by the High Court of Australia, albeit obliquely, in Sue v Hill (1999), where it was decided that the UK had become a "foreign power" within the meaning of Constitution s 44(i). The flipside of that is that Australia had become independent of the UK. But the Court did not have to decide, and did not decide, when that status had been attained - except that it had been attained either through or by the time of the Australia Acts. The Court reached that view on the basis of the sections of the Australia Acts, not their preambles. However, these words in the preamble to the Australian version also appear in that version’s long title. And this led Callinan J to say in the High Court in 2003:
"The long title of the Australia Act 1986 (Cth) is:
'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.'
It was this overt legislative act, mirroring simultaneous legislation in the United Kingdom, that gave voice to the completion of Australia's evolutionary independence. It was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom. Nothing can serve so well to give legitimacy to a nation and its constitutional integrity as a rare and complete consensus of governments of the kind that the enactment of the Australia Acts represents.": Shaw v MIMA (2003) 218 CLR 28, Callinan J at par 172.
A convenient source on all this is Tony Blackshield and George Williams, Australian Constitutional Law and Theory (5th edn 2010) ch 3. They accept that Australian is now an independent country. However, an argument against this remains that the Australian head of state – the monarch – is still whoever is the monarch of the UK, appointed under UK law: Commonwealth of Australia Constitution Act 1900 (Imp), cl 2.--Wikiain (talk) 00:49, 5 October 2013 (UTC)

No the fact that we still use the Elizabeth as our Head of State does not lessen our Independent status . She simply acts completely separately in relation to Australia meaning she acts only on the Advice of Australian ministers - never British ministers . And she does so because she has personally accepted the Title ' Queen of Australia ' as per the AUSTRALIAN Parliaments Royal Styles and Titles Act 1973 . Independence comes not from who your Head of State is but from who's jurisdiction you come under . That's where the Australia Acts come in - they terminated ALL capacity of the British Parliament to legislate for Australia . From that instant Australia was a Sovereign Independent Nation . (talk) 02:44, 18 November 2013 (UTC)

The point being made was that the UK chooses who is to be its head of state and covering clause 2 provides that this person shall automatically be head of state in Australia. Australia must be consulted on any change to the method of choice: Statute of Westminster 1931. That is happening now with respect to ending male priority. But, when whatever is the current method is applied, Australia has no input into who is chosen.Wikiain (talk) 00:20, 19 November 2013 (UTC)
Well, we had input when choosing to ratify the Statute of Westminster. When you have a monarch who's monarch of more than one country, they have to physically reside in only one of them, and given the history of the monarchy, it would have been absurd for George V and his successors to choose Canberra, for example, as their principal place of residence. All the signatory countries that weren't the UK recognised this, and they also understood that the laws of succession initially applied only to England/Great Britain/the UK but have achieved wider application over the course of history. By Australia ratifying the Statute, that was us saying "We choose who the monarch of Australia is, and it will be whoever the UK laws of succession say is the monarch". Had we not wanted that hereditary process to operate with respect to Australia, we could have objected. It wasn't until the 1990s that serious objections were raised, and that was resolved by the people in the negative, at least for the moment. -- Jack of Oz [pleasantries] 07:24, 19 November 2013 (UTC)

No , it is purely up to us ( Australia ) who our head of state is . Clause 2 is within the Australian Constitution which is now an Australian Act which we can change and the UK has no control over . The agreement in the preamble to the Statute of Westminster is not part of the Act and is therefore merely an agreement not a restriction . As JackofOz points out the 1999 referendum was a graphic demonstration of our Sovereign ability to choose without the slightest interference from any other Nation . (talk) 04:47, 21 November 2013 (UTC)

As noted already many times and on various pages, Australia achieved full independence incrementally, and no one date can be pinpoint. I would however definitely rule out 1920, because that would imply that the League of Nations conferred sovereignty, which could not be the case. So yes, I think 'declaration of independence' is a misleading phrase, especially considering 1986 wasn't a unilateral act - mirror acts were being passed in the UK, Canada, New Zealand and other countries.Gazzster (talk) 10:53, 21 November 2013 (UTC)

' Achieved full Independence incrementally ' is misleading . At no stage was Australia Independent at any time prior to 5am GMT 3/3/86 . Australia had been granted varying degrees of ' autonomy ' up until 1986 . The British Parliament could and did legislate for Australia prior to '86 . After 5am it could no longer do so - under any circumstances . The only restriction on the Imperial Parliament prior to 3/3/86 was at the Federal level ' manner and form ' provisions that the UK would not legislate for Australia without our ' request and consent ' which was not a legal restraint but an agreement not to do so . At the State level ( which includes all Australians ) the UK Parliament could and did involve itself in ( Australian ) affairs . Note the final legislation of the UK Parliament that legally applied to Australia was the Australia Act ( UK ) . In fact the mirror Acts were required precisely because Australia was not a Sovereign Independent Nation prior to 5am 3/3/86 . The precise moment is pinpointed . (talk) 00:09, 22 November 2013

It is not as simple as that. The evolution of Australia as a sovereign state is complex. Prior to '86 we had the extraordinary situation where, on the federal level, the Crown was independent of the Parliament of the UK, while the states, which had never adopted the Statute of Westminster, were still dependent. We could make arguments about Australia's independence both ways. I would note though, that Westminster was not imposed by the UK Parliament: it had to be adopted by the dominions, implying that there was a degree of independence already present.Gazzster (talk) 02:38, 24 November 2013 (UTC)

No it's extremely simple - define the moment Australians ceased to be British subjects ie ceased to be subject to a law passed by the British Parliament . Evolution toward that moment was not that moment - it was a gradual increase in autonomy ( as British subjects ) . You can't split Sovereignty at the Federal level even after the Statute the British parliament could pass a law both at the Federal and State levels ( as pointed out above ) . Westminster was in fact imposed by the UK Parliament in '31 - it was a UK Act ( of paramount force ) that ALLOWED certain Dominions to delay the coming into effect ' OF CERTAIN PROVISIONS 'of the paramount Act . Without the Statute ' 31 the Adoption Act ( Cth ) would have held no legal force . A ' degree ' of Independence is not Independence it is autonomy . Ie it is the Sovereign Parliament ( UK ) ALLOWING a degree of freedom . (talk) 06:11, 24 November 2013 (UTC) At one nano second to 5am GMT 3/3/86 the UK Parliament could legislate for Australia - one nano second later it couldn't . (talk) 23:18, 28 November 2013 (UTC)

I still believe it is not so clear. On the state level, the crown of the UK was sovereign. That's pretty clear.However, on the federal level, the Queen of Australia was a legally distinct person from the Queen of the United Kingdom, and the Parliament of the UK could not bind the Parliament of the Commonwealth, even considering the Privy Council. And even in the last case, the Parliament of Australia could unilaterally have abolished appeals, and the High Court regularly disallowed appeals. The purpose of the Australia Act 1986 was to establish the sovereignty of the states and settle once and for all any irregularities re sovereignty. Elements of sovereignty of the UK did remain, but that did not mean that sovereignty did not rest ultimately with the Crown of Australia. And when we're talking about independence, that's quite another matter, for a nation may not possess full sovereignty, but be entirely independent in the exercise of its affairs. And if you remember, the thread started with questioning whether the AA was a 'declaration of independence'. I agreed that no, it was, for Australia possessed independence already, for many, many years.Gazzster (talk) 01:36, 30 November 2013 (UTC)
And the long title of the Act,'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', would seem to support that view. In other words, the Act amended or abolished certain constitutional legislation to reflect the fact that the Commonwealth was already independent of the United Kingdom.Gazzster (talk) 05:32, 30 November 2013 (UTC)

So you are saying Callinan j was wrong when he said " It was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom." ? If it was just about the States why did they include references to the Commonwealth ? What was the point of S.1  ? The wording of the preamble does lead to doubt but in effect it is saying the constitutional arrangements of Commonwealth ( and the States ) was NOT in conformity with Australias status as a Sovereign Independent and Federal Nation . This was the Act to bring the constitutional arrangements into conformity with such a status . ( ie a new status ) . The Commonwealth of Australia includes the states ( they are the states of the Commonwealth ) and there is only one citizenship - are you saying that at one point those citizens had two Sovereigns ? Balfour Declaration 1926 defined the Dominions as " autonomous Communties ( within the Empire ) not sovereign nations . Prior to the AAs that definition applied to the Dominion of Australia ( that was the arrangement the AAs changed ) . — Preceding unsigned comment added by (talk) 09:49, 30 November 2013 (UTC)

'Dominion of Australia' was never the title of Australia. It was, of course, referred to as a 'dominion' however. Yes, prior to 1986 the states were not under the Crown of Australia, since they had never adopted the Statute of Westminster. And yes, as regards the Commonwealth, the AA tidied up the books to reflect the true situation. Australia had long been acting as a sovereign nation. For example, there is the famous episode when the Queen refused to intervene in the 1975 crisis, acknowledging that only the Governor-general had the authority to intervene. Before that, in 1933, Western Australia petitioned the UK Parliament to overturn Federation. Parliament replied that it could not do so, for it would require the consent of the Commonwealth Parliament. And this was before the adoption of the Statute of Westminster.Gazzster (talk) 20:51, 30 November 2013 (UTC)
Remember, sovereignty and independence are not interchangeable terms. Elements of UK sovereignty remained in constitutional arrangements prior to 1986, I agree. Sovereignty is a legal term which confers constitutional power. Independence, however, is another thing entirely. A nation may be fully independent, yet still retain elements of sovereignty from another power. The dominions could, and did act independently, and even against, the interests of the UKGazzster (talk) 20:58, 30 November 2013 (UTC)

No Gazzter Sovereignty and Independence are very different if the ' independence ' is qualified and it's a grant . Australias ' independence ' was a GRANT by the Sovereign ( UK ) parliament prior to '86 . It was an allowed degree of independence ( a policy of the Imperial Parliament since Lord Durhams Imperial Report in 1839 ) . That's why it wasn't Independence it was ' autonomy ' . The Balfour Declaration was very very carefully worded . (talk) 22:43, 30 November 2013 (UTC)

I believe caution is needed here. It is unhelpful, at best, to define a situation in such black and white terms. There is no doubt - none whatsoever, that the Queen of the Commonwealth of Australia was a juridically distinct person from the Queen of the United Kingdom prior to 1986 - of that there is no possible doubt. The Statute of Westminster gave Australia, as well as other dominions, equal and independent legislative powers. The Colonial Laws Validity Act ceased to have any effect in the Commonwealth. That meant that the UK Parliament was powerless to bind the Commonwealth Parliament, except with the consent of the Commonwealth. Yet the Constitution of Australia retained clauses that could be interpreted in terms of the UK Crown retaining sovereignty. That needed clearing up, and that was what 1986 was all about, as far as the Commonwealth was concerned. The status of the states was more serious, as I've noted before.Gazzster (talk) 03:56, 1 December 2013 (UTC)

And yet the Imperial Parliament was still a ' Sovereign ' Parliament meaning that by merely legislating it ' could ' overide the Statute of Westminster and australian courts would recognise that reversal ( see K.C. Wheare ) . Plus the British Parliament was directly in control of all Australian citizens via the States - and did intervene ( which was one of the reasons the Australia Acts were passed ). After the AA no further UK legislation was valid in Australia . Period . ( and the High Court has said it will no longer recognise UK legislation . (talk) 06:14, 1 December 2013 (UTC)

Caption for the Act[edit]

The caption of the inset image of the Act reads "Assent original of Australia Act 1986 (UK), located in Parliament House, Canberra", but the description at File:Australia Act 1986.jpg[1] reads "Photo of the Australia Act 1986 document, as located in en:Parliament House, Canberra." If there is no source for the wording "Assent original..." it should be replaced so as to read: "Photo of the Australia Act 1986 document, as located in Parliament House, Canberra." See also "Caption for image of the Act"[2] at Talk:Monarchy of Australia. --Qexigator (talk) 14:40, 13 December 2013 (UTC)

Qexigator, you have noted a good source, which however states: "At the ceremony Queen Elizabeth presented Prime Minister Bob Hawke with an original of the Proclamation, and the Assent original of the Australia Act (UK)." So the caption was correct and I have gone back to that wording, keeping your note although moving it into the text.--Wikiain (talk) 00:37, 15 December 2013 (UTC)
Can you explain what that source means by "Assent original"? Does it refer to one of two or more of the documents which had been engrossed as originals for assent in the UK parliament, with the intent that one of those originals should be taken for the Queen's sign manual to be added in Australis contemporaneously with the proclamation? Qexigator (talk) 00:59, 15 December 2013 (UTC)
This source (which I have added to the text) is more expansive: "to which she had signed her assent on 7 February 1986". I understand it to mean that it was a copy that she had signed in the UK. Her practice, as can be seen with the photo of signing the proclamation, is to sign on the front. To have added another signature in Australia - and as Queen of what? - would have created just the sort of confusion that the existence of Cth and UK Australia Acts was designed to avoid. However, I'll see what I can find in my Library.--Wikiain (talk) 02:19, 15 December 2013 (UTC)
So far so good, and noted, per [3], the information that Australian Constitution (Public Record Copy) Act 1990 (c. 17)[4] refers to the Commonwealth of Australia Constitution Act 1900. But since when has it been the UK practice for the Queen's sign manual to appear anywhere on an assent original, record copy or other? That was the purport of my question above. Maybe your library will reveal. Qexigator (talk) 08:35, 15 December 2013 (UTC)
Yes, I mentioned the 1990 act in a timeline (on the monarchy talk page) in which both the Australia Act (UK) and the Commonwealth of Australia Constitution Act 1900 (Imp) have come to reside in Australia.--Wikiain (talk) 16:59, 15 December 2013 (UTC)
But unless the UK parliament has legislated for the 1986 act as was the case with the 1900 act, the question remains, and the description of the captioned document as "Assent original" remains doubtful (see below) unless authoritatively confirmed. This is not given in that timeline. Qexigator (talk) 18:07, 15 December 2013 (UTC)
+The text of the proclamation given by Bennion's 'MODERN ROYAL ASSENT PROCEDURE AT WESTMINSTER'[5] suggests that, under the Royal Assent Act 1967[6] the identity of the Act/s thereby assented to is ascertained only by the short title/s in the schedule, and not by the Queen's sign manual on a print of any of them: '...Her Majesty does not have before her the texts, or even the long titles, of the Bills to which she signifies assent. Indeed these are not even communicated to officials of the Queen's Household.' Normally, only two official copies of the act are pepared on vellum, one for the records of the House of Lord and one for the PRO, according to Essentials of the English Legal System by John Wheeler, 2006.[7] --Qexigator (talk) 13:33, 15 December 2013 (UTC)

No Parliament can bind a future parliament[edit]

How does the UK parliamentary principal that "No Parliament can bind a future parliament" interact with the Australia act? Could the UK repeal the Australia Act and then resume legislating for Australia? Could the Australian government repeal the act and resume Australia's status as a UK colony and dominion? Xpusostomos (talk) 14:29, 31 December 2016 (UTC)

The principle is also observed in Australia.
On your first question: yes as to repeal of the UK version; but Australia would surely ignore any such new legislation.
On your second question: yes as to repeal of the Australian version; but (a) I doubt that just repealing the Act would restore the former position and (b) Australian independence may have been achieved before the Act (see Sue v Hill).
But these are fanciful speculations. Wikiain (talk) 00:39, 1 January 2017 (UTC)
There is no provision in the Constitution for the dissolution of the Commonwealth. If somehow it was dissolved I suspect the states would remain sovereign, for the Australia Act cuts their legislative ties with the UK.Gazzster (talk) 03:35, 1 January 2017 (UTC)