Australia Act 1986

The Act directly affects every level of Australian government and the judicial system. The Commonwealth Parliament is empowered to enact the measure pursuant to the requests of all state parliaments under s 51(xxxviii) of the Constitution, and thereafter gains a limited but exclusive role in any future amendment of the Act itself under section 15. Each state parliament receives expanded legislative competence freed from repugnancy and extraterritoriality constraints, yet remains subject to the manner-and-form requirements preserved by section 6 and the overriding supremacy of the Commonwealth Constitution under section 5.

State Governors and Premiers assume a direct constitutional relationship with the Sovereign unmediated by United Kingdom ministers; section 7(5) makes clear that advice is tendered by the Premier alone. The judicature is affected by the termination of Privy Council appeals: every Australian court other than the High Court falls within the definition of "Australian court" in section 16(1), and section 11(1) bars any appeal from or in respect of their decisions. Legal practitioners and litigants lose the option of further appellate recourse to London (subject only to the transitional savings in section 11(4)).

The Queen and her United Kingdom advisers are relieved of responsibility for state matters (section 10) and of the obligation to act on advice from United Kingdom ministers in state affairs. Private citizens are affected indirectly through the finality of Australian court decisions, the validity of state laws that might previously have been challenged for repugnancy, and the constitutional certainty that flows from the removal of imperial fetters. Shipping interests operating under state law are freed from the repealed provisions of the Merchant Shipping Act 1894.

Because the Act applies to the Commonwealth, each State and each Territory, its reach is geographically and jurisdictionally comprehensive. New States admitted under s 121 of the Constitution are expressly included in the definition of "State" in section 16(1).

The Act creates few direct duties but establishes important constitutional rights and immunities. State parliaments acquire an explicit right to legislate with extraterritorial effect (s 2(1)) and to repeal or amend incorporated UK law free of repugnancy constraints (s 3(2)). Citizens and governments gain the right to rely on the validity of state laws that would previously have been vulnerable under the Colonial Laws Validity Act 1865.

Section 7 vests in state Governors the exclusive exercise (subject to the stated exceptions) of all Her Majesty's powers and functions in respect of a State, thereby creating a constitutional convention, now statutorily recognised, that the Governor acts on the advice of the state Premier alone. Section 7(5) crystallises the right of the Premier to tender that advice directly.

Section 11 confers on all parties to Australian litigation the effective right to finality in domestic courts, subject only to the preserved transitional appeals. Sections 8 and 9 confer on state parliaments and their bills immunity from royal disallowance, suspension, withholding of assent or reservation, thereby strengthening the democratic legitimacy of state legislation.

The manner-and-form protection in section 6 operates as both a restriction and a right: it prevents circumvention of entrenched state constitutional provisions while preserving the ability of a state parliament to alter its own entrenching laws provided it follows the required procedure. Section 15 creates a special procedural right (and corresponding limitation) governing amendment of the Australia Act or the Statute of Westminster, requiring unanimous state parliamentary concurrence for Commonwealth amending legislation.

Section 5 expressly withholds any right that might otherwise have arisen to enact state legislation repugnant to the Commonwealth Constitution or the Australia Act itself, thereby protecting the federal structure and the supremacy of the written Constitution.

The Australia Act 1986 contains no criminal offences, monetary penalties or traditional enforcement mechanisms. Its enforcement is constitutional and declaratory. Section 1, for example, operates automatically to prevent any post-commencement UK Act from forming part of Australian law; no court or executive officer is required to "enforce" it beyond recognising its legal effect. Likewise, section 11(1) is self-executing: no appeal lies or shall be brought, rendering any purported appeal a nullity.

The Act relies on judicial notice and the ordinary jurisdiction of Australian courts to declare invalid any law or instrument that offends its provisions. Section 9(1) and (2), for instance, declare that any law or instrument purporting to require the Governor to withhold assent or to reserve a bill "shall be of no force or effect". A court confronted with such an instrument would simply treat it as void.

Section 3(2) enlarges state legislative power by removing the ground of invalidity previously supplied by repugnancy; enforcement therefore consists in courts refusing to strike down state laws on that basis. The transitional savings in section 11(4) are enforced by courts continuing to hear only those appeals that satisfy the precise pre-commencement criteria set out in subparagraphs (i) and (ii).

Because the Act is expressed as both a declaration and an enactment, its provisions are intended to have immediate legal operation upon commencement without the need for subordinate legislation or administrative enforcement machinery.

The Australia Act 1986 is carefully drafted to sit atop, but not to disturb, the foundational constitutional instruments. Section 5 expressly subordinates the expansions of state power in sections 2 and 3(2) to the Commonwealth of Australia Constitution Act, the Constitution of the Commonwealth, the Statute of Westminster 1931 as amended, and the Australia Act itself. Any state law that would repeal, amend or be repugnant to those instruments gains no force or effect.

The Act repeals or amends a long list of imperial statutes in so far as they form part of Australian law: the Colonial Laws Validity Act 1865 (s 3(1)), sections 735 and 736 of the Merchant Shipping Act 1894 (s 4), multiple Judicial Committee Acts and colonial court provisions (s 11(2) and (3)), and designated sections of the Statute of Westminster (s 12). These repeals are selective and geographically limited to the extent that the statutes formed part of the law of the Commonwealth, a State or a Territory.

Section 15 creates a unique amendment regime that interacts with s 128 of the Constitution: while the ordinary constitutional amendment power under s 128 remains available to the Commonwealth, any alteration that would affect the Australia Act must still satisfy the unanimous state concurrence requirement if it seeks to repeal or amend the Act or the Statute of Westminster. The deeming provision in section 15(2) treats a repugnant Commonwealth Act as, to the extent of the repugnancy, an Act to repeal or amend the offending provision.

The Act also interacts with state constitutional legislation. Sections 13 and 14 make direct textual amendments to the Constitution Act 1867-1978 (Qld) and the Constitution Act 1889 (WA). Section 16(2) and (3) extend the meaning of references to "a law made by that Parliament" and "the Parliament of a State" to accommodate the particular constitutional arrangements of Western Australia and New South Wales.

Because the Act is expressed to bind the Crown (implicit in its recitals and substantive provisions), it interacts with the common law prerogatives and with any remaining royal instructions that might have survived earlier patriation measures. Section 7(2) and (5) replace any such instructions with the statutory rule that the Governor exercises the powers on the advice of the state Premier.

The Australia Act 1986 has not been amended since its enactment. Its text remains identical to the version that commenced on 3 March 1986 by Proclamation. The absence of amendment is deliberate: section 15 erects a high procedural hurdle requiring the concurrence of all state parliaments for any repeal or amendment (other than constitutional alteration under s 128 that does not engage the special procedure). The stability reflects the Act's success in achieving its stated purpose of bringing constitutional arrangements into conformity with Australia's sovereign status. No subsequent government has identified a policy need sufficient to justify convening all state parliaments and the Commonwealth Parliament to revisit the settlement.

The Statute of Westminster 1931, which the Australia Act partially repeals and interacts with, has likewise seen no relevant post-1986 amendment affecting the Australian provisions. The entrenched nature of the arrangement has meant that any constitutional evolution has occurred instead through High Court interpretation of the Constitution itself rather than through textual amendment of the Australia Act.

No provision of the Australia Act 1986 has been the subject of a successful constitutional challenge. Courts have consistently treated the Act as a valid exercise of Commonwealth legislative power supported by the requests of all state parliaments under s 51(xxxviii) of the Constitution. The termination of appeals in section 11 has been accepted without litigation; the transitional savings in subsection (4) have operated to permit only a handful of pre-commencement matters to proceed, after which the jurisdiction of the Privy Council over Australian courts ceased.

Controversies have instead arisen at the margins. The precise interaction between section 6's manner-and-form requirement and the Commonwealth Constitution has been debated in academic commentary, particularly whether a state parliament could, by following its own entrenched procedure, enact legislation that might indirectly affect Commonwealth matters. Section 5(b) appears to foreclose that possibility by denying force to any state law repugnant to the Commonwealth Constitution.

The extra-territorial legislative power conferred by section 2(1) has been cited in cases concerning the limits of state legislative competence, but always as confirmatory of power rather than as a source of controversy. The requirement in section 7(5) that advice to Her Majesty be tendered by the Premier has removed earlier uncertainties about the source of advice on state matters and has not generated litigation.

Section 15's special procedure has never been invoked, leaving unresolved (as a practical matter) the precise relationship between that procedure and a s 128 referendum that might purport to alter the Australia Act. The text of section 15(3) appears to preserve the s 128 power, but the interaction remains untested.

Most practitioners assume the Australia Act is a purely historical relic. In fact it continues to supply the legal foundation for the direct relationship between the Sovereign and state Governors. A subtle but important gotcha is that section 7(3) expressly reserves to the Queen (not the Governor) the power to appoint and remove a Governor; any state legislation purporting to alter that would engage the section 5 savings and the section 15 procedure.

Section 6's preservation of manner-and-form requirements is frequently overlooked. A state parliament that attempts to repeal an entrenched provision without following the required supermajority or referendum procedure will produce a law "of no force or effect" even though sections 2 and 3(2) appear to grant plenary power. The definition of "State" in section 16(1) includes a "new State", yet the unanimous concurrence requirement in section 15 has never been updated to address how a new State would participate in any future amendment process.

The repeal of the Colonial Laws Validity Act 1865 in section 3(1) applies only to laws made after commencement. Pre-commencement state laws that were once saved by the 1865 Act remain valid only to the extent they were not repugnant at the time they were made; this temporal distinction is occasionally missed in due-diligence exercises.

Section 11(4)(b)(ii) preserves appeals where special leave was granted by Her Majesty in Council on a petition presented before commencement. Because "Her Majesty in Council" is defined broadly in section 16(1), any lingering petition lodged before 3 March 1986 could theoretically still be pursued, although in practice the last such matters were exhausted decades ago.

Finally, the interpretive provision in section 16(2) that treats the Constitution Act 1889 (WA) as included in references to "a law made by that Parliament" is a Western Australian-specific gloss that does not apply to other states; practitioners acting across jurisdictions sometimes overlook this asymmetry.

Compliance with the Australia Act 1986 is largely passive for private citizens and most businesses. State legislatures and their drafters must ensure that any bill affecting the constitution, powers or procedure of the parliament complies with whatever manner-and-form requirements are contained in existing state law (s 6). When advising on the validity of state legislation that might appear to conflict with historic UK law, counsel should cite section 3(2) to confirm that repugnancy is no longer a ground of invalidity.

Governors and Premiers must observe the statutory rule in section 7(5) that advice is tendered by the Premier; any attempt to route advice through United Kingdom ministers would be contrary to the Act. In litigation, practitioners should never seek to institute an appeal to Her Majesty in Council from a post-commencement decision of an Australian court; any such step would be met with the absolute bar in section 11(1).

When drafting Commonwealth legislation that might touch upon the Australia Act or the Statute of Westminster, parliamentary counsel must confirm that the bill either does not engage section 15 or, if it does, that the requests or concurrences of all state parliaments have been obtained. Constitutional amendments under s 128 that would affect the operation of the Australia Act should be drafted with section 15(3) in mind.

For due-diligence exercises involving state constitutional law, lawyers should examine both the Australia Act amendments in sections 13 and 14 (for Queensland and Western Australia) and the continued operation of any entrenched provisions preserved by section 6. In cross-border regulatory advice, section 2(1) can be cited to support the extraterritorial reach of state legislation provided there remains a sufficient connection with the legislating state.

Because the Act is constitutionally entrenched and contains no ongoing reporting or licensing obligations, "compliance" is essentially a matter of respecting the distribution of powers and the procedural limits it has codified. Annual reviews of state legislation for repugnancy are now obsolete; the focus has shifted to ensuring consistency with the Commonwealth Constitution (protected by s 5) and with any applicable manner-and-form requirements.