This post is a follow on from the post Hobbes, The Commonwealth of Australia and the Commonwealth of Nations.

In that post, I wrote about the two Commonwealths and the two Crowns.

• The first Crown is the colonial Crown, that is from England and is shared with the Commonwealth of nations all around the world.
• The second is the Crown of Australia. This is an abstract placeholder Crown representing the Australian people. It is a local crown of Australia, but this Crown is still under construction.

The Australia Acts 1986 are two separate acts. One was passed by the Australian Parliament called the Australia Act 1986 (Cth), the other was passed by the Parliament of the United Kingdom called the Australia Act 1986.

The Governor-General of Australia, Sir Ninian Stephen, assented to the Australia Act (Cth) “In the name of Her Majesty” on 4 December 1985. Queen Elizabeth II assented to the Australia Act 1986 (UK) on 7 February 1986. Then, visiting Australia, at a ceremony held in Government House, Canberra, on 2 March 1986 the Queen signed a proclamation that the Australia Act (Cth) would come into force at 5 am Greenwich Mean Time on the following day. She presented Australian Prime Minister Bob Hawke with the signed copy of the proclamation, as well as the Assent original of the UK Act (image above).

https://www.liquisearch.com/australia_act_1986/passage_and_proclamation_of_the_act

Before this, each state of Australia also passed acts to request the Australia Acts. For example, here is the Queensland act: https://www.legislation.qld.gov.au/view/pdf/asmade/act-1985-069

Here is the full sequence;

1. The states passed their acts requesting the Australia Act
2. Australian Parliament passed the Australia Act (Cth)
3. The Governor General assented to the Australia Act (Cth)
4. The Imperial Parliament passed the Australia Act(Imp), this was assented by the Queen
5. The Queen came to Australia and made a proclamation in Government House, Canberra the day before the Acts came into effect
6. Acts came into force 3 March 1986

This looks like a treaty between the two Crowns. It went through State, Australian and Imperial parliaments first, and went through the assent processes. It is a treaty that the two Crowns not interfere in the administration of the other Crown.

Long title of the Australia Acts

The title of the acts are not identical.

Imperial long title: An Act to give effect to a request by the Parliament and Government of the Commonwealth of Australia

Australian long title: 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

Note the Australian version asserts that Australia is sovereign and independent, but the Imperial version does not. The Australian Crown is asserting sovereignty and independence – but the Imperial Crown is not recognising that sovereignty yet. The non-recognition by the Imperial parliament of Australian independence is because Aboriginal people still need to sign-off on it all, by deciding and asserting that they too are Australian. Only they can speak for country.

Extra-territorial power

Australia is a federation of colonies. Colonies are not truly sovereign, they have no authority in their own right. As such, a colony cannot acquire more territory (by conquering etc.) in their own right. If they acquire new territory, it will be in the right of their mother Crown.

The Northern Territory and other Australian territories are not part of any State/colony, yet are administered by the federation of Australia. If the States have no authority of their own to make laws for the Northern Territory, then the federation of Australia as a whole – also does not have that authority. This is because a federation is a power sharing pool, it cannot create new power out of thin-air. If the sum of the parts do not have the power, neither does the total.

The Australia Acts addresses this here;

2 Legislative powers of Parliaments of States.

(1)It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

This section above declares that the States can make legislation that applies extra-territorially. With this, the states can make laws over other territories outside of each state. As the federation is a pool of state legislative power – the federal government also inherits that power from the states. So this is not just about the states – it is about giving the federation of Australia – the federal Government – the power to make laws about territory outside of the states. They need to put this in – or the federal government will not have power over it’s own capital territory or any external territories.

Here is the section immediately after;

(2)It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

This is really interesting paragraph. This seems to be a handover of legislative powers from the imperial parliament to the States – but it is not phrased as if it is a hand-over, it could be a declaration that it has always been so. The word “include” at the beginning suggests that the States may even have more legislative power that the imperial parliament has over the state.

This (2)paragraph states that nothing in this subsection confers on a State any capacity the State didn’t already have. So where does the power of the States come from if not from British imperialist power? The States must be getting their powers from somewhere other than the Parliament of the United Kingdom.

If you look at this in terms of the two Crown theory – this is not handing over legislative power at all, but recognising that the Australian Crown had that power the entire time – perhaps since time immemorial. The Australian Crown did not have parliaments though – until the British came along. This power continuity theory is also consistent with the long title of the Australian version of the act – i.e. to bring constitutional arrangements into conformity. The title is not about transfer of powers, but to align with an alternative foundation narrative.