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WHEREAS the Prime Minister of the Commonwealth
and the Premiers of the States at conferences held in Canberra on
24 and 25 June 1982 and 21 June 1984 agreed on the taking of certain
measures 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:
AND WHEREAS in pursuance of paragraph
51 (xxxviii) of the Constitution the Parliaments of all the States
have requested the Parliament of the Commonwealth to enact an Act
in the terms of this Act:
BE IT THEREFORE ENACTED by the Queen,
and the Senate and the House of Representatives of the Commonwealth
of Australia, as follows:
Termination of power of Parliament
of United Kingdom to legislate for Australia
1. No Act of the Parliament
of the United Kingdom passed after the commencement of this Act
shall extend, or be deemed to extend, to the Commonwealth, to
a State or to a Territory as part of the law of the Commonwealth,
of the State or of the Territory.
Legislative powers of Parliaments
of States
2.
(1) It is hereby declared
and enacted that the legislative powers of the Parliament of each State include full power to make
laws for the peace, order and good government of that State that have
extra-territorial operation.
(2) It is hereby further declared
and enacted that the legislative powers of the Parliament of each State include all legislative powers that the
Parliament of the United Kingdom might have exercised before the commencement of
this Act for the peace, order and good government of that State but nothing
in this subsection confers on a State any capacity that the State did not have immediately
before the commencement of this Act to engage in relations with countries
outside Australia.
Termination of restrictions on
legislative powers of Parliaments of States
3.
(1) The Act of the Parliament
of the United Kingdom known as the Colonial Laws Validity Act 1865 shall not apply
to any law made after the commencement of this Act by the Parliament of a
State.
(2) No law and no provision of any
law made after the commencement of this Act by the Parliament of a State shall be void or inoperative on the
ground that it is repugnant to the law of England, or to the provisions of any existing
or future Act of the Parliament of the United Kingdom, or to any order, rule
or regulation made under any such Act, and the powers of the Parliament of a State
shall include the power to repeal or amend any such Act, order, rule or regulation
in so far as it is part of the law of the State.
Powers of State Parliaments in
relation to merchant shipping
4. Sections 735 and 736 of
the Act of the Parliament of the United Kingdom known as the Merchant
Shipping Act 1894, in so far as they are part of the law of a
State, are hereby repealed.Commonwealth Constitution, Constitution
Act and Statute of Westminster not affected
5. Sections 2 and 3 (2) above—
(a) are subject to the Commonwealth
of Australia Constitution Act and to the Constitution of the Commonwealth; and
(b) do not operate so as to give
any force or effect to a provision of an Act of the
Parliament of a State that would repeal, amend or be repugnant
to this Act, the
Commonwealth of Australia Constitution Act, the Constitution of
the Commonwealth or the Statute of Westminster 1931 as amended and
in force from time to time.
Manner and form of making certain
State laws
6. Notwithstanding sections
2 and 3 (2) above, a law made after the commencement of this Act
by the Parliament of a State respecting the constitution, powers
or procedure of the Parliament of the State shall be of no force
or effect unless it is made in such manner and form as may from
time to time be required by a law made by that Parliament, whether
made before or after the commencement of this Act.
Powers and functions of Her Majesty
and Governors in respect of States
7.
(1) Her Majesty’s representative
in each State shall be the Governor.
(2) Subject to subsections (3) and
(4) below, all powers and functions of Her Majesty
in respect of a State are exercisable only by the Governor of
the State.
(3) Subsection (2) above does not
apply in relation to the power to appoint, and the
power to terminate the appointment of, the Governor of a State.
(4) While Her Majesty is personally
present in a State, Her Majesty is not precluded
from exercising any of Her powers and functions in respect of
the State that are the subject of subsection (2) above.
(5) The advice to Her Majesty in
relation to the exercise of the powers and functions
of Her Majesty in respect of a State shall be tendered by the
Premier of the State.
State laws not subject to disallowance
or suspension of operation
8. An Act of the Parliament
of a State that has been assented to by the Governor of the State
shall not, after the commencement of this Act, be subject to disallowance
by Her Majesty, nor shall its operation be suspended pending the
signification of Her Majesty’s pleasure thereon.
State laws not subject to withholding
of assent or reservation
9.
(1) No law or instrument
shall be of any force or effect in so far as it purports to
require the Governor of a State to withhold assent from any Bill
for an Act of the
State that has been passed in such manner and form as may from
time to time be
required by a law made by the Parliament of the State.
(2) No law or instrument shall be
of any force or effect in so far as it purports to
require the reservation of any Bill for an Act of a State for
the signification of Her
Majesty’s pleasure thereon.
Termination of responsibility
of United Kingdom government in relation to State matters
10. After the commencement
of this Act Her Majesty’s Government in the United Kingdom shall
have no responsibility for the government of any State.
Termination of appeals to Her
Majesty in Council
11.
(1) Subject to subsection
(4) below, 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.
(2) Subject to subsection (4) below—
(a) the enactments specified in
subsection (3) below and any orders, rules,
regulations or other instruments made under, or for the purposes
of, those
enactments; and
(b) any other provisions of Acts
of the Parliament of the United Kingdom in
force immediately before the commencement of this Act that make
provisions for or in relation to appeals to Her Majesty in Council
from or in
respect of decisions of courts, and any orders, rules, regulations
or other
instruments made under, or for the purposes of, any such provisions,
in so far as they are part of the
law of the Commonwealth, of a State or of a Territory, are hereby
repealed.
(3) The enactments referred to in
subsection (2)(a) above are the following
Acts of the Parliament of the United Kingdom or provisions of
such Acts:
The Australian Courts Act 1828, section
15
The Judicial Committee Act 1833
The Judicial Committee Act 1844
The Australian Constitutions Act
1850, section 28
The Colonial Courts of Admiralty
Act 1890, section 6.
(4) Nothing in the foregoing provisions
of this section—
(a) affects an appeal instituted
before the commencement of this Act to Her
Majesty in Council from or in respect of a decision of an Australian
court; or
(b) precludes the institution after
that commencement of an appeal to Her Majesty
in Council from or in respect of such a decision where the appeal
is instituted—
(i) pursuant to leave granted by
an Australian court on an application made
before that commencement; or
(ii) pursuant to special leave granted by Her Majesty in Council
on a petition presented before that commencement,
but this subsection shall not be
construed as permitting or enabling an appeal to Her Majesty in
Council to be instituted or continued that could not have been
instituted or continued if this section had not been enacted.
Amendment of Statute of Westminster
12. Sections 4, 9 (2) and
(3) and 10 (2) of the Statute of Westminster 1931, in so far as
they are part of the law of the Commonwealth, of a State or of
a Territory, are hereby repealed.
Amendment of Constitution Act
of Queensland
13.
(1) The Constitution
Act 1867–1978 of the State of Queensland is in this section
referred to as the Principal Act.
(2) Section 11A of the Principal
Act is amended in subsection (3)—
(a) by omitting from paragraph (a)—
(i) “and Signet”; and
(ii) “constituted under Letters Patent under the Great Seal of the
United Kingdom”; and
(b) by omitting from paragraph (b)—
(i) “and Signet”; and
(ii) “whenever and so long as the office of Governor is vacant or
the Governor is incapable of discharging the duties of administration
or has departed from Queensland”.
(3) Section 11B of the Principal
Act is amended—
(a) by omitting “Governor to conform
to instructions” and substituting “Definition of Royal Sign Manual”;
(b) by omitting subsection (1);
and
(c) by omitting from subsection
(2)—
(i) “(2)”;
(ii) “this section and in”; and
(iii) “and the expression ‘Signet’ means the seal commonly used
for the sign
manual of the Sovereign or the seal with which documents are sealed
by the
Secretary of State in the United Kingdom on behalf of the Sovereign”.
(4) Section 14 of the Principal
Act is amended in subsection (2) by omitting
“, subject to his performing his duty prescribed by section 11B,”.
Amendment of Constitution Act
of Western Australia
14.
(1) The Constitution
Act 1889 of the State of Western Australia is in this section
referred to as the Principal Act.
(2) Section 50 of the Principal
Act is amended in subsection (3)—
(a) by omitting from paragraph (a)—
(i) “and Signet”; and
(ii) “constituted under Letters Patent under the Great Seal of the
United Kingdom”;
(b) by omitting from paragraph (b)—
(i) “and Signet”; and
(ii) “whenever and so long as the office of Governor is vacant or
the Governor
is incapable of discharging the duties of administration or has
departed from
Western Australia”; and
(c) by omitting from paragraph (c)—
(i) “under the Great Seal of the United Kingdom”; and
(ii) “during a temporary absence of the Governor for a short period
from the
seat of Government or from the State”.
(3) Section 51 of the Principal
Act is amended—
(a) by omitting subsection (1);
and
(b) by omitting from subsection
(2)—
(i) “(2)”;
(ii) “this section and in”; and
(iii) “and the expression ‘Signet’ means the seal commonly used
for the sign
manual of the Sovereign or the seal with which documents are sealed
by the
Secretary of State in the United Kingdom on behalf of the Sovereign”.
Method of repeal or amendment of this Act or Statute of Westminster
15.
(1) This Act or the Statute
of Westminster 1931, as amended and in force from time
to time, in so far as it is part of the law of the Commonwealth,
of a State or of a
Territory, may be repealed or amended by an Act of the Parliament
of the
Commonwealth passed at the request or with the concurrence of
the Parliaments
of all the States and, subject to subsection (3) below, only in
that manner.
(2) For the purposes of subsection
(1) above, an Act of the Parliament of the
Commonwealth that is repugnant to this Act or the Statute of Westminster
1931, as amended and in force from time to time, or to any provision
of this Act
or of that Statute as so amended and in force, shall, to the extent
of the
repugnancy, be deemed an Act to repeal or amend the Act, Statute
or provision
to which it is repugnant.
(3) Nothing in subsection (1) above
limits or prevents the exercise by the Parliament
of the Commonwealth of any powers that may be conferred upon that
Parliament
by any alteration to the Constitution of the Commonwealth made
in accordance
with section 128 of the Constitution of the Commonwealth after
the
commencement of this Act.
Interpretation
16.
(1) In this Act, unless the contrary intention appears—
“appeal” includes a petition of
appeal, and a complaint in the nature of an appeal;
“appeal to Her Majesty in Council” includes any appeal to Her Majesty;
“Australian court” means a court
of a State or any other court of Australia or of a
Territory other than the High Court;
“court” includes a judge, judicial
officer or other person acting judicially;
“decision” includes determination,
judgment, decree, order or sentence;
“Governor”, in relation to a State,
includes any person for the time being
administering the government of the State;
“State” means a State of the Commonwealth
and includes a new State;
“the Commonwealth of Australia Constitution
Act” means the Act of the
Parliament of the United Kingdom known as the Commonwealth of
Australia
Constitution Act;
“the Constitution of the Commonwealth” means the Constitution of the
Commonwealth set forth in section 9 of the Commonwealth of Australia
Constitution Act, being that Constitution as altered and in force
from time to time;
“the Statute of Westminster 1931” means the Act of the Parliament of the United
Kingdom known as the Statute of Westminster 1931.
(2) The expression “a law made by
that Parliament” in section 6 above and the
expression “a law made by the Parliament” in section 9 above include,
in relation
to the State of Western Australia, the Constitution Act 1889 of
that State. (3) A reference in this Act to the “Parliament of
a State” includes, in relation to the
State of New South Wales, a reference to the legislature of that
State as
constituted from time to time in accordance with the Constitution
Act, 1902, or
any other Act of that State, whether or not, in relation to any
particular legislative
act, the consent of the Legislative Council of that State is necessary.
Short title and commencement
17.
(1) This Act may be cited
as the Australia Act 1986.
(2) This Act shall come into operation on a day and at a time
to be fixed by
Proclamation.*
[Minister’s second reading speech
made in—
House of Representatives on 13 November
1985
Senate on 29 November 1985]
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