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Monday, 2 December 1985
Page: 2685


Senator COONEY(4.31) —I can only endorse Senator Durack's remark that this is historic legislation, and I take the opportunity to enter the debate on that basis. In saying that, I think proper tribute should be paid to Senator Durack, to Senator Gareth Evans, and to Mr Lionel Bowen for bringing the legislation in its present form before this House.

The Australia Bill 1986 and the Australia (Request and Consent) Bill 1985 give legislative recognition to the movement by Australia and the Australian States from entities markedly colonial in character to ones essentially independent. An illustration of that is clause 11 of the Australia Bill, which Senator Durack has already mentioned, which finally severs the connection between Australia and the Privy Council. That is an illustration of the way in which Australia has obtained maturity and confidence, even in the lifetime of us all here.

Looking at the case of Waghorn v. Waghorn, decided in 1942, Mr Justice Dixon, as he then was, had this to say with reference to a Court of Appeal case, not a House of Lords case or a Privy Council case:

. . . I think that if this court is convinced that a particular view of the law has been taken in England from which there is unlikely to be any departure, wisdom is one the side of the court's applying that view to Australian conditions, notwithstanding that the court has already decided the question in the opposite sense. The fact that we still believe in the correctness of our own decision, as I do in the present case, is not in itself an adequate ground for refusing to follow this course.

That was from perhaps the greatest common law judge for many years. One contrasts that statement with that which His Honour the then Chief Justice made in Parker v. The Queen in 1963, which is interesting. In talking about a case, he said:

. . . I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith's Case, I think that we cannot adhere to that view or policy.

He went on to say:

I think Smith's Case should not be used as authority in Australia at all.

Then, of course, in the case of Viro v. The King, the court had obtained the position where it said in effect that the law as laid down by the High Court should be followed by all courts in Australia. That is simply an illustration, as I say, of our maturity and confidence as a nation of Australia, and with which the various States have advanced to our present situation. This legislation gives expression to that situation.

Senator Durack has said that this does not make this country a republic. That is so. What it illustrates is that Her Majesty the Queen is now Queen of Australia, Queen of the various States, and Queen, as it were, directly of those entities. As Senator Durack Says, it is no longer the situation that the States must go through some official in England to have access to the Queen. So what is illustrated now is that we have the separate States, independent and fully self-governing except insofar as powers are exercisable by the Commonwealth under section 51 of the Constitution. As I say, this is a matter of great advance to the States and to this country. We now take our place more than ever before as a truly independent country, as a people who can decide our own destiny and our own place in the world.


Senator Cook —Quite right.


Senator COONEY —And quite right, as Senator Cook says. As Senator Durack says, there are questions as to whether we needed to go to the United Kingdom Parliament to obtain that situation; but, nevertheless, any doubt as to whether we should or should not is removed by the fact that we do so, and do so, it seems, with the greatest of concurrence from that body. I reiterate that these are historic Bills, and I feel honoured to have taken part in the debate on them.