Australia Act 1986
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 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)[n 1] 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. They were enacted using legislative powers conferred by enabling Acts passed by the parliaments of every Australian state. The Acts came into effect simultaneously, on 3 March 1986.
Australia Act 1986
Australia Act 1986 (Cth)
4 December 1985
3 March 1986
An Act to give effect to a request by the Parliament and Government of the Commonwealth of Australia
1986 c. 2
17 February 1986
3 March 1986
According to the long title of the Australian act, its purpose was "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 Act (Cth and UK) eliminated the remaining possibilities for the United Kingdom 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.[n 2] This act formally severed all legal ties between Australia and the United Kingdom except for the monarchy.
At the time, the Commonwealth, state and UK acts were known as the "Australia Acts". However, in discussions of contemporary law (as opposed to legal history), the state Acts have performed their function, and thus the expression "Australia Act(s)" refers 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".
The High Court in Sue v Hill in 1999[23] 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. (Several more cases of British citizenship, as well as citizenship of other countries, in the Commonwealth Parliament came to light in the 2017–18 Australian parliamentary eligibility crisis.)
That view was taken in Sue v Hill by three members of the High 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 section 6 of the Australia Act 1986 (Cth) was invalid.[24] Section 106 of the Constitution guarantees that a state constitution may be altered only in accordance with its own provisions,[n 8] 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),[24] this was inconsistent with Constitution s 106, so that section 6 of 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.
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 ... it was a formal declaration that the Commonwealth of Australia and the Australian states were completely constitutionally independent of the United Kingdom".[25]
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