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Friday, 29 November 1985
Page: 2551


Senator GRIMES (Minister for Community Services)(9.07) —I move:

That the Bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows-

AUSTRALIA BILL 1986

This Bill and the accompanying Australia (Request and Consent) Bill 1985 have been introduced at the request of the Parliaments of all the States and in accordance with the established policy of successive Commonwealth Governments.

All the States have recently enacted legislation which requested this Parliament to enact legislation in the terms of each of the two Bills.

The Bills will give effect to the agreement between the Commonwealth Government and all State Governments to seek the removal of the outmoded residual constitutional links that still exist between Australia and the United Kingdom Parliament, Government and judicial system, and to substitute new constitutional provisions and procedural arrangements.

This agreement has been reached following extensive consultations between the Commonwealth and State Governments, dating from the 1982 Premiers' Conference under our predecessors.

At the outset, I emphasize that nothing in the legislation will impair the position of the Queen as Queen of Australia. In fact, the Queen, instead of being formally advised on State matters by United Kingdom Ministers, will now be advised direct by State Premiers in her exercise of the powers concerned.

The Australia Bill 1986, if enacted, will be an exercise of the power under section 51 (xxxviii) of the Constitution-the power to make laws with respect to the `exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia'. The Australia Bill bears the date `1986', and provides for the Act to be cited as the `Australia Act 1986', because it is desirable for the Act to have the same title as the corresponding Act to be enacted by the United Kingdom Parliament; this matter is dealt with in the accompanying Bill.

In brief, the proposed legislation will terminate any powers that might still remain in the United Kingdom Parliament to make laws having effect as part of Australian law. It will remove existing fetters and limitations upon the legislative powers of the State Parliaments except in respect of the conduct of foreign affairs. In particular, the Colonial Laws Validity Act 1865 will be repealed in relation to the States.

As well, residual executive powers of the United Kingdom Government with respect to the States will be terminated.

The legislation will also remove the remaining avenues of appeal from Australian Courts to the Privy Council, thus making the High Court of Australia the final Court of Appeal for all Australian Courts. This will end the anomalous situation in the area of legal precedent, where a State Supreme Court could find itself faced with two binding, yet conflicting, authorities.

Among other important provisions in the Bills are those concerning the State Governors. They are to be vested with all of the Queen's existing powers and functions in respect of the States except those in relation to appointments of State Governors and the termination of their appointments, and in relation to awards of Imperial Honours. On these matters, the Queen will no longer be advised by United Kingdom Ministers (following recommendations by the State Premiers to the Foreign and Commonwealth Office of the United Kingdom Government). Instead the Queen will be advised directly in each case by the Premier of the State concerned.

Furthermore, when the Queen is personally present in a State, she will be able to exercise a power or function in relation to a State but will do so on any occasion only if there has been mutual and prior agreement between the Queen and the Premier that it would be appropriate for her to do so. All State Premiers have confirmed their acceptance that such mutual and prior agreement is an essential ingredient of the proposed arrangements.

In order to cater for those few States who may still wish to issue them, arrangements have been made for Imperial Honours to be awarded by the Queen upon the advice of the Premier of the State concerned. These arrangements do not need to be included in the legislation and have not been included. Procedures acceptable to the Commonwealth and State Governments, the Queen and the United Kingdom Government have been formulated and will be given effect by amendments to the prerogative instruments in the United Kingdom constituting the various Orders and Awards.

I turn now to the detailed provisions of the Bill.

The Australia Bill departs from the usual form of Commonwealth Bills in that the provisions for its short title, commencement and interpretation are placed at the end so as to parallel the Act to be sought from the United Kingdom Parliament. This has been done so that the clause numbers of the two Bills fully correspond.

Clause 1 of the Australia Bill terminates the power of the Parliament of the United Kingdom to make laws having effect as part of the Australian law, whether as law of the Commonwealth, of a State or of a Territory.

Clause 2, which must be read subject to clauses 5 and 6 mentioned below, declares and enacts in sub-clause (1) that the powers of each State Parliament include powers to legislate extra-territorially. Sub-clause (2) removes any other limitations on the legislative powers of the States that might exist by reason of their former colonial status. However, sub-clause 2 (2) expressly provides that it does not confer upon any State any capacity that the State did not have immediately before the commencement of the Australia Act to engage in relations with countries outside Australia.

Sub-clause 3 (1) removes the fetters imposed upon the States by the Colonial Laws Validity Act 1865. Sub-clause 3 (2), which will operate subject to clauses 5 and 6, makes it clear that the States will be able to enact legislation repugnant to the laws of England or to United Kingdom Acts, and that those Acts may be repealed or amended by a State Parliament in so far as they are part of the law of the State. Clause 4 expressly repeals sections 735 and 736 of the Imperial Merchant Shipping Act 1894 in so far as they are still part of the law of a State.

Clause 5 qualifies clause 2 and sub-clause 3 (2) by making them subject to the Commonwealth of Australia Constitution Act and the Commonwealth Constitution. Clause 5 goes on to provide that they do not operate so as to give effect to any provision of a State Act that would repeal, amend or be repugnant to the Australia Act itself, the Commonwealth of Australia Constitution Act, the Commonwealth Constitution or the Statute of Westminster, as amended and in force from time to time.

Clause 6 provides that, notwithstanding clause 2 and sub-clause 3 (2), a law of a State made after the commencement of the Australia Act respecting the constitution, powers or procedure of the Parliament of that State shall be of no force or effect unless made in the manner and form (if any) required by a law made by that rliament, whether before or after the commencement of the Australia Act. It thus preserves the entrenched provisions of State Constitutions subject to any changes made in accordance with State law.

Clause 7 contains the provisions relating to the vesting of the Queen's powers in State Governors, except in regard to appointments of Governors and the exercise of the Queen's powers when she is personally present in the State. I mention again the understanding that the Queen, when personally present in a State, would only exercise a power or function following mutual and prior agreement between the Queen and the Premier.

Clause 8 will put an end to existing powers of the Queen to disallow State laws, and will prevent any requirement for the operation of State laws to be suspended pending signification of the Queen's pleasure. Sub-clause 9 (1) will prevent any law or instrument from requiring the Governor of a State to withhold assent from any Bill that has been passed in the manner and form (if any) required by a law of that State, and sub-clause 9 (2) will preclude any law or instrument from requiring the reservation of any Bill for a State Act for the signification of her Majesty's pleasure.

Clause 10 provides that, after the commencement of the Act, the United Kingdom Government will have no responsibility for the government of any State.

Clause 11 will terminate appeals to the Privy Council from Australian Courts. However, it will not affect an appeal instituted before the commencement of the legislation, or an appeal instituted after that commencement pursuant to leave granted on an appropriate application or petition presented before the commencement.

Clause 12, which supplements clause 1, expressly repeals section 4, sub-sections 9 (2) and (3), and sub-section 10 (2) of the Statute of Westminster, relating to the powers of the United Kingdom Parliament to make laws with respect to the Commonwealth and the States of Australia, in so far as they are part of Australian law.

Clause 13 and 14 contain special provisions concerning the Constitution Acts of Queensland and Western Australia. These provisions are consequential upon the termination of the powers and responsibilities of United Kingdom Ministers in respect of the States.

Clause 15 provides that the proposed legislation and the Statute of Westminster, as amended and in force from time to time, in so far as they are part of the law of the Commonwealth, a State or a Territory, can be repealed or amended only by the Commonwealth Parliament at the request, or with the concurrence, of the Parliaments of all the States. An exception is made in respect of Commonwealth legislation enacted pursuant to any constitutional alteration made, in accordance with section 128 of the Constitution, after the commencement of the Australia Act.

Clauses 16 and 17 provide for matters of interpretation, short title and commencement. It has been agreed between the Commonwealth and State Governments that the Australia Acts to be enacted by the Commonwealth and United Kingdom Parliaments will be proclaimed to come into operation at the same time.

Mr President, passage of this long overdue legislation will complete the process of constitutional development commenced at the beginning of this century. It will eliminate those laws and procedures which are anachronistic and substitute new arrangements which reflect Australia's status as an independent and sovereign nation. It will also ensure the capacity of the States to exercise fully the powers that are appropriate to their position in our Federation, freed at last from the legal fetters and limitations derived from their earlier status as British colonies.

I commend the Bill to the Senate.

AUSTRALIA (REQUEST AND CONSENT) BILL 1985

This Bill complements the Australia Bill 1986.

By enacting this second Bill-the Australia (Request and Consent) Bill-this Parliament will declare that the Parliament and Government of the Commonwealth request, and consent to, the enactment by the United Kingdom Parliament of an Act in the terms set out in the Schedule to the Australia (Request and Consent) Bill. That scheduled Act is in the same terms as the Australia Bill 1986 now before this House, except for some minor differences that are needed to take account of the fact that the scheduled Act will be an Act of the United Kingdom Parliament. In addition to this Commonwealth request to the United Kingdom Parliament, each State Parliament has enacted legislation directly requesting the United Kingdom Parliament to enact legislation in the terms of the proposed United Kingdom Act.

The remarks made in relation to the provisions of the Australia Bill apply to the corresponding provisions of the Act to be sought from the United Kingdom Parliament as set out in the Schedule to this Bill.

I commend the Bill to the Senate.

Debate (on motion by Senator Kilgariff) adjourned.