Talk:Australia Act 1986
From Wikipedia, the free encyclopedia
 |
Australia Act 1986 is within the scope of WikiProject Australia, which aims to improve Wikipedia's coverage of Australia and Australia-related topics. If you would like to participate, visit the project page. | ||
| Start | This article has been rated as Start-class on the quality scale. | ||
| High | This article has been rated as High-importance on the importance scale. | ||
|
Assessment comments
|
|||
[edit] Dubious
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).
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.)
- 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 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)
[edit] Privy Council appeals from the High Court
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)
[edit] Appointment of Australians to the Privy Council
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)
