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Hearsay ... the electronic journal of the Bar Association of Queensland - Book Review: The Australia Acts 1986

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Hearsay ... the Journal of the Bar Association of Queensland

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Book Review: The Australia Acts 1986
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book_aust_acts.jpgAustralia’s Statutes of Independence

Author: Anne Twomey1

Publisher:  The Federation Press2

Reviewed by: Chris Tam

In Attorney-General (WA) v Marquet, (‘Marquet’),3 the plurality (Gleeson CJ, Gummow, Hayne and Heydon JJ) noted that ‘proper account of the history that lay behind the enactment of the Australia Act’ must be had to interpret its terms.  Their Honours also said that the Australia Act is to be ‘traced to its Australian source – the Constitution of the Commonwealth’.4

If Associate Professor Anne Twomey’s The Australia Acts 1986 Australia’s Statutes of Independence had been available at the time of Marquet, their Honour’s might have gone directly to Chapter Three (The Negotiation of the Australia Acts 1986) of this scholarly work to have had regard to such a proper account.  This proposition demonstrates the importance and utility of Dr Twomey’s book.

As Kirby J said in the Work Choices Case: ‘[w]here a new legal proposition is advanced, involving suggested new insights into the Constitution, it is not unusual for that course to require this Court to rethink earlier case law and to apply the new doctrine consistently.  In proceedings such as this…it would not be surprising if this Court were obliged to reconsider earlier decisions reached…it would be surprising if the contrary were the case’.5  To witness such a process in action, interested readers might also go to Chapter Four of The Australia Acts, which is the core of the book and provides a commentary of every provision of the Acts under the headings ‘drafting history’ and ‘operation and interpretation’.

But the work is not purely utilitarian and Dr Twomey’s vast efforts would be wasted if it only drew the attention of constitutional lawyers and perhaps the solicitors-general for the States and the Commonwealth and their juniors from time to time.  For an example of sheer non-utilitarian interest, Dr. Twomey records an exchange between Gareth Evans and the Duke of Edinburgh when the Queen visited Canberra to proclaim the commencement of the Australia Act 1986 (Cth) in March 1986: ‘[a]t one stage before the ceremony [Evans] found himself face to face with the Duke of Edinburgh.  To fill a conversational gap, Evans says he told the Duke “something about how great an occasion it was, and how [he] felt personally chuffed after being somewhat involved – to which, after a long narrow-eyed pause [the Duke] said “Big Deal!”’.6

Another significant reason why the work deserves a wider audience is perhaps best illustrated by the following passage:7

… [Australian national] independence could be associated with at least three different points in Australia’s constitutional evolution:

1. the point at which Australia achieved the power to obtain its complete independence from the United Kingdom, which was arguably 1931;8

2. the point at which Australia became internationally recognised as a ‘nation’ and asserted her independent nationhood, which occurred gradually during the 1930s and 1940s (for example, through the exercise of independent powers to enter into treaties and declare war);  and

3. the point at which full judicial, legislative and executive independence from the United Kingdom was claimed and exercised, which occurred in 1986 with the enactment of the Australia Acts 1986.

There is little doubt that point three was decisive and historically (not just jurisprudentially) significant. As the long title to the Australia Act 1986 (Cth) demonstrates:

An Act 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.9

For lawyers, a further significance of the enactment of the Australia Acts was the installation of the High Court of Australia at the ‘apex’ of the unified legal system of the Commonwealth as the ‘ultimate appellate court of the nation’.10  From then, the High Court had the ‘constitutional duty of supervising the nation’s legal system and, subject to any relevant statutory or constitutional limitations, of maintaining a unified system of common law’.11

In Kable v Director of Public Prosecutions (NSW)12 (‘Kable’), McHugh J referred to extra-judicial comments of Sir Owen Dixon who described the system that attended previously:

We therefore regard Australian Law as a unit.  Its content comprises, besides legislation, the general common law which it is the duty of the courts to ascertain as best they may.  But subject always to the binding authority of some disturbing precedent, we treated as the duty of all courts to recognize that it is one system which should receive a uniform interpretation and application, not only throughout Australia but in every jurisdiction of the British Commonwealth where the common law runs.13

But two years before his extra-judicial statement,  Sir Owen Dixon, himself, had said in Parker v R (‘Parker’) that:

Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions in cases decided here, but having carefully studied Smiths Case (1961) AC 290, I think that we cannot adhere to that view or policy.  There are propositions laid down in the judgment which I believe to be misconceived and wrong.14

Sir Owen Dixon’s description of the ‘unit’ followed from the legal system that McHugh J in Kable observed was ‘adopted’ by the Constitution.15  The doubts he expressed in Parker were fully resolved by the enactment of the Australia Acts.  Up until then, the unusual circumstance whereby appeals from State Supreme Courts to the Privy Council persisted, notwithstanding that, in 1965, the Privy Council declared in Australian Consolidated Press Ltd v Uren16 that the ‘common law of Australia was not necessarily the common law of England or the British Commonwealth’.17 

The development of a unified legal system of the Commonwealth has, and continues to, manifested tensions between the States and the Commonwealth within that system that occupy thousands of pages of the Commonwealth Law Reports.18  The book brings some of those tensions into context.  For example, Dr Twomey notes that the point ‘must be made’ that the status of the Australian States as dependencies of the British Crown before 3 March 1986 ‘was no mere formality’ and that it had  ‘substantive effects’ as there were ‘real limitations on State legislative and executive power’.  From a constitutional perspective, such circumstances left Australia in an ‘anomalous position’. Australia was a ‘federation that was internationally recognised as an independent sovereign nation, but was comprised of constituent units that were dependencies of the British Crown’.19  The position and status of the States and the effect of the Colonial Laws Validity Act 1865 (Imp.) is dealt with in Chapter Two (Colonial Limits and the Statute of Westminster).

Moreover, in The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (Wooltops Case) Issacs J said:20

When the Constitution was framed, there were six separate Colonies, six separate ‘constitutional units’, in Australia.  In the aggregate they covered the whole territory of the continent of Australia.  Each had its separate constitution and laws, throughout the territory of each.  The sovereign exercised the executive power of the Colony in accordance with the local constitution, and by the advice of local Ministers, and that executive power, by whatsoever functionary exerted, extended to the execution and maintenance of the colonial constitution and laws.  But the limit of executive jurisdiction as to every Colony was its geographical area, and that was easily gathered from its constitution as a truth long familiar.  Over the whole of that geographical area, and not beyond it, the local government exercised executive power – and normally the power was exclusive.21

The plurality in Pape v The Federal Commissioner of Taxation (Gummow, Crennan and Bell JJ) referred to Isaacs J’s observation in the Wooltops Case that the creation of the Commonwealth by the constitution ‘superimposed’ upon the constituent States a new constitutional unit.  But, before the commencement of the Australia Acts, the ‘Queen of Australia was confined to exercising constitutional powers and functions with respect to the Commonwealth level of government only.  It was the Queen of the United Kingdom who exercised constitutional powers and functions with respect to the States, acting on the advice of her United Kingdom Ministers’.22  Their Honours stated that what the ‘text of the Constitution did not attempt was to detail the respective relationships between those Executive Governments and between them and the Imperial Government’.23 It was the latter that was not resolved until the commencement of the Australia Acts.24 Accordingly, and from that point on, there could be no doubt, whatsoever, that the polity which the Constitution established and maintained was an independent nation state with a federal system of government.25  The distinction drawn by their Honours is the subject of an interesting discussion in Chapter Six (The Monarch and the Australia Acts).  Are there seven separate Crowns or one federal Crown for Australia?  

In the introduction to the work, Dr Twomey states that the ‘aim of this book is to enhance the understanding of the Australia Acts and their operation as part of Australia’s Constitution.  Its focus is upon the legal and constitutional aspects of the relationship between the United Kingdom and Australia.  However, this is often informed by an understanding of the political and historical relationship’.26  As mentioned above, the historical relationship is revealed in Chapter Three where Dr. Twomey extensively refers to Commonwealth documents and communiqués.  The sentiments expressed by the authors of some of those documents arguably continue to resonate.  For example, the then Queensland Crown Solicitor wrote to the Commonwealth Attorney-General’s Department in 1979 observing that it was ‘important that the relatively benign control which the Imperial authorities actually or may potentially exercise be not replaced by a more dogmatic and assertive influence from a local source.  We do not wish to be like the man in the Gospel who was purged of devils [which] later returned in greater numbers so that the last state of the man was worse than the first’.  To the same effect, Sir Joh Bjelke-Peterson said at the Premier’s Conference in June 1982 that the ‘devil you know is better than the devil you don’t know’.27  Interested readers will remember when British Ministers refused to advise the Queen to extend the commission of Sir Colin Hannah as Governor of Queensland, despite Sir Joh publically expressing that he planned to extend the governor’s term in the face of his controversial comments about the activities of Gough Whitlam’s Labor government.  

The tension was, of course, shared and was also evident as between the States.  The Australia Acts are two separate prices of legislation, one passed by the Parliament of Australia (which required ‘request legislation’ to be passed by all the States) and one by the Imperial Parliament.  Chapter Five concerns the validity of the two Acts and the respective doubts as to whether they should have been enacted at all.

Associate Professor Anne Twomey has made another important legal and historical contribution that further enhances her reputation as a leading constitutional law scholar.  I highly recommended The Australia Acts 1986 Australia’s Statutes of Independence.



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