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. The Acts eliminated the ability for the United Kingdom to legislate with effect in Australia, for the UK to be involved in any Australian government, and for an appeal from any Australian court to a British court. This act formally severed all legal ties between Australia and the United Kingdom.
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, 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.
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 Commonwealth of Australia was formed in 1901 by the federation of six British colonies, each of which became a state. The Constitution of Australia provided for a Commonwealth Parliament, with legislative power on a range of specified topics. The constitution was (and still is) contained in a British statute.
The United Kingdom Parliament retained some ultimate legislative power in relation 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 retroactive to 1939. 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. Until then, Australia had legally been a self-governing dominion of the British Empire, but with the adoption of the statute became a (mostly) sovereign state.
However, section 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. Thus, the Parliament of the United Kingdom still had the power to legislate for the states. In practice, however, this power was almost never exercised. For example, in a referendum on secession in Western Australia in April 1933, 68% of voters favoured seceding from Australia and becoming a separate dominion. The state government sent a delegation to Westminster to request that this result be enacted into law, but the British government refused to intervene on the grounds that this was a matter for the Australian government. As a result of this decision in London, no action was taken in Canberra or Perth.
The UK government maintained certain powers over the states until the passage of the acts. For instance, in 1958 the UK vetoed the appointment of then Tasmania premier Robert Cosgrove to be governor, in 1976 UK vetoed the Queensland government's advice to extend Colin Hannah's term as Queensland governor, and in 1979 the British foreign secretary advised the New South Wales government that he would advise the Queen to not assent to two bills that he considered to be unconstitutional. In most of these instances exercised by the UK government, they were in relation to the appointments of state governors, which was a power reserved by the monarch (Queen Elizabeth II at the time). However, the advice to the monarch had been made by UK ministers rather than the relevant state premier.
In addition to the above, the states had other residual constitutional links due to their residual colonial status. These included:
the Colonial Laws Validity Act 1865 and the "repugnancy" rule, which meant that any state legislation inconsistent with United Kingdom laws extending to the state would be invalid
limitations on state powers to regulate merchant shipping due to Merchant Shipping Act 1894, which require the monarch's approval
In the 1980s, Canada, Australia, and New Zealand all began the process of severing their last constitutional links to the United Kingdom. Canada began by patriating its constitution in the Constitution Act, 1982, which was enacted by the British Parliament in the Canada Act 1982. New Zealand experienced a constitutional crisis in 1984, leading to a review of New Zealand's constitution. Australia was experiencing the same desire for constitutional modernisation.
Appeals to the Judicial Committee of the Privy Council
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 put to voters in the various colonies and presented to the British government for embodiment in UK legislation, was that there was to be no appeal from the High Court to the Judicial Committee of the Privy Council in any matter involving the interpretation of the Constitution or of the constitution of a state, unless it involved the interests of some other dominion. However, the British insisted on a compromise. Section 74 of the Constitution as enacted by the Imperial Parliament provided two possibilities of appeal. There could be an appeal if the High Court issued a certificate that it was appropriate for the Privy Council to determine an inter se matter, i.e. a matter that concerned the constitutional relations between the Commonwealth and one or more states or between two or more states. Furthermore, 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; 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. 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". In 1985, the High Court unanimously observed that the power to grant such a certificate "has long since been spent" and is "obsolete".
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. 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.
Australian and British legislation
Disagreement existed as to whether the Commonwealth Parliament alone had sufficient authority to enact the Australia Act under section 51(xxxviii) of the Constitution, or whether an additional act of the UK Parliament would be required. To put the legal status of the Australia Act beyond doubt, the Australian and British parliaments would each enact the Australia act in substantially similar forms.
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.