Australia Act 1986 - The Act and Australian Independence

The Act and Australian Independence

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". While this might be understood as a declaration of independence, it can also be understood as an acknowledgement that Australia was already independent, leaving open the question of when independence had been attained. There is no earlier declaration or grant of independence.

The High Court in Sue v Hill in 1999 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.

That view was taken in Sue v Hill by three members of the 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 the Australia Act 1986 (Cth) was invalid. Constitution s 106 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 (s 13) and Western Australia (s 14). In Kirby's view in Marquet (2003), this was inconsistent with Constitution s 106, so that 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.

Soon afterwards, however, in Shaw (2003), 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 (Cth) came into operation, 3 March 1986.