The Significant Role of the Australia Acts in Australian Public Law

Publication Date01 September 2019
AuthorLiam Boyle
DOI10.1177/0067205X19856501
Date01 September 2019
SubjectArticles
Article
The Significant Role
of the Australia Acts
in Australian Public Law
Liam Boyle*
Abstract
The Australia Acts accomplished more than symbolic change. They brought about a super-structural
change to Australian constitutional law, and shortly afterwards a fundamental change to the public
law jurisprudence in Australia emerged. This article presents an argument that these changes are
inextricably intertwined and that the Australia Acts provided a significant catalyst and a tipping point
for fundamental change to the Australian legal system.
Part I: Introduction and Background
1. Introduction
Explaining changes to legal norms is invariably problematic: methodologically, theoretically and
evidentially.
1
This is because identifying and explaining large legal changes require an under-
standing of:
networks of communications and interactions between individuals and institutions, extending over
time, which create both the conditions for, and the content of, the legal change that we are trying to
make sense of.
2
As concerns the radical changes brought about judicially, whatever the source of the change (eg,
legislative, political, intellectual or technological), that source must be ‘sufficiently strong that a
tipping point is reached and the inertia of the earlier rule is overcome’.
3
This article investigates what is surely the most radical legal change to the Australian legal
system since federation: the independence from the United Kingdom formalised by the Australia
Act 1986 (Cth) and the Australia Act 1986 (UK) (‘Australia Acts’). The article assesses the extent
*Senior Lawyer, Australian Government Solicitor (AGS). The views expressed in this article are my personal views and not
necessarily those of AGS. The article is based on a dissertation submitted as part of the LLM at the University of Cambridge.
I thank Professor Peter Cane of Christ’s College, Cambridge, and the anonymous reviewers for their helpful criticism. Any
errors, of course, are mine. The author may be contacted at liam.boyle@outlook.com.
Federal Law Review
2019, Vol. 47(3) 358–389
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19856501
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to which a distinct change in public law jurisprudence and the development of several new public
law doctrines that emerged after 1986 are connected to the Australia Acts.
In summary, I argue that this distinct change in public law jurisprudence and the Australia
Acts are closely connected. What the Australia Acts accomplished was more than a symbolic
change. The legal and extra-legal changes brought about were real and fundamental. They
brought about a super-structural change to Australian constitutional law. I argue that the
Australia Acts provided a significant catalyst and a tipping point for fundamental change to
constitutional law in Australia. It is no mere coincidence that these large changes have taken
place after 1986, and have been adopted and shaped — and continue to be shaped — by
various judges since then.
The Australia Acts provide a useful framework through which to understand how and why such
radical changes were brought about. Perhaps not surprisingly, it is only in recent years that the
wideranging effect of the Australia Acts, via the accretion of numerous cases, has emerged with a
clarity not previously discerned.
4
This may partly explain the relative lack of attention given to the
overarching interpretative role played by the Australia Acts in modern Australian public law until
recently.
5
Of course, the significance of the Australia Acts has been well-recognised in explaining
particular legal developments. And similar tipping point hypotheses have been advanced over the
years.
6
But the bringing together of all these disparate strands at a macro level is underdeveloped
and warrants further attention.
7
The article is structured in three parts. Part I sets out the background to the Australia Acts. Part II
considers the several changes to public law doctrines that I argue are closely connected to the
Australia Acts. These relate to:
vconstitutional interpretation and the recourse to the convention debates
vthe implied freedom of political communication
vother implied constitutional protections
vexecutive power
vjudicial review.
Part III then ties the emerging themes together and draws some broad conclusions with the
caveat that such large questions require large analysis, and this article may be taken to build upon
such existing thinking as there is, and to provide some building blocks for testing this question
further.
To be clear, this article does not argue that all the changes seen after the Australia Acts are
without antecedents. The history may be seen as evolutionary, to use a weath ered metaphor,
whereby the ideas and trends of the past merge with contemporary customs and political values
to produce changes galvanised and accelerated by the Australia Acts.
8
Second, and more impor-
tantly, the legal and extra-legal changes brought about by the Australia Acts could never be relied
upon to explain completely the several changes identified in Part II. Various forces will be in play,
and the Australia Acts explanation is merely one factor (albeit a significant one). The Acts repre-
sented a powerful force in the complex interaction of law and society. The complete disaggregation
of the multiple causative phenomena for such large changes would be extremely fraught, if not
impossible.
9
But the Australia Acts explanation cannot be ignored, and serves as an explanatory
tool, as well perhaps even a normative justification for past and future developments.
Boyle 359
2. Australian Independence: The Australia Acts 1986
Following federation, the legal and public conceptions of the Australian Constitution, the Com-
monwealth and the states were affected by several interconnected factors which had the result of
forging a degree and spirit of Australian independence.
10
The creeping wave of national identity
and independence highlighted the anomalous position of the states vis-a-vis Britain and the Com-
monwealth. Prior to 1986, Britain could still make laws applying to the states by paramount force,
and in relation to state matters the Queen still acted on the advice of her British ministers (which
may not have aligned with that of the state ministers).
11
The anomaly was compounded by the
problem of ascertaining what Imperial statutes operated in the state by paramount force, and thus
beyond the power of the states to amend, some of which were laws well outdated and in need of
reform, especially given amendments made in Britain had not carried through to the states.
12
Further, despite restrictions on its influence, the Privy Council still had a significant role in the
Australian legal system.
Following lengthy, complex and delicate negotiations among Britain, the Commonwealth and
the states, these anomalies, as well as other practical concerns, were addressed.
13
The result was
what became compendiously known as the ‘Australia Acts’, being the two statutes passed in almost
identical terms: one in Westminster and the other in the Commonwealth Parliament.
14
Two Acts
were deemed necessary out of an abundance of caution, as well as to ‘preserve the integrity and
effectiveness of the process’.
15
These were underpinned by the Australia (Request and Consent)
Act 1985 (Cth) and the Australia Acts (Request) Act 1985, passed by each state Parliament. As is
described in the long title and preamble of those Acts, their purpose is 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’. That is, those Acts
were designed to change Australia’s constitutional arrangements. Despite the constitutional sig-
nificance of this reform, the ‘electors were not consulted, and there was no referendum or
plebiscite’.
16
The Australia Acts addressed various issues. For present purposes, the important changes were
addressed by the following sections. Section 1 of the Acts terminated the power of the Parliament
of the United Kingdom to legislate for the Commonwealth, states or territories. This had ‘the
effect of doing away with the concept of the Constitution having an inferior status to any other
law’.
17
Section 3 provided that no law made by the parliament of a state after the commencement
of the Australia Acts could be void or inoperative on the ground that it is repugnant to or incon-
sistent with the law of England (including by reason of the Colonial Laws Validity Act 1865).
Section 7 granted to the state Governors the Queen’s powers and functions in relation to the states.
It also provided that any advice to the Queen regarding the exercise of the powers and functions of
Her Majesty in respect of a state is to be tendered by the Premier of the state.
Section 8 terminated the convention relating to the ability of the Queen to disallow a state law.
Section 9 removed any laws that required a Governor of a state to withhold assent to a Bill that has
been passed in accordance with any manner and form requirement. Section 10 confirmed that after
the commencement of the Acts, the British Government would have no responsibili ty for the
government of any state. Section 10 thus ended the role of the ‘Queen of the United Kingdom’
with respect to the states.
18
Section 11 terminated appeals to the Privy Council from any Australian court (other than the
High Court). This completed the hierarchical break from the Privy Council, the position in relation
360 Federal Law Review 47(3)

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