Saturday, 5 April 2008


On 2 March 1986, Her Majesty, Queen Elizabeth II - in her capacity as Queen of Australia - signed a proclamation which brought both the Australia Act 1986 (Commonwealth) and Australia Act 1986 (United Kingdom) into operation in both the United Kingdom and throughout Australia on 3 March 1986.
While there has been some argument about the actual date of Australia’s complete sovereignty, there can be no doubt that it has been fully achieved since 3 March 1986 when Queen Elizabeth II signed the proclamation bringing both the Australia Acts into operation.
While this would be seen by most as the final step in achieving independence it overlooks the fact that no referendum was undertaken to ensure that the Australian people have exclusive and total supremacy over their collective constitutional documents.
The problematic section 15(1) of both the Australia Acts allows the Commonwealth Parliament - with the consent of all the State Parliaments - to amend or repeal the Statute of Westminster and both the Australia Acts.
This power could be abused sometime in the future in respect of Section 8 of the Statute of Westminster given the High Court decision in Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 has put at rest any doubts as to the validity of the Australia Act 1986 (Commonwealth).   In the unanimous opinion of the court, s 51(xxxviii) of the Constitution should be given a broad interpretation reflecting its 'national purpose of a fundamental kind', which is that of 'plugging gaps which might otherwise exist in the overall plenitude of the legislative powers exercisable by the Commonwealth and State parliaments under the Constitution'.
If the 2020 Summit Governance Group does nothing else other than to recommend that Section 15(1) be repealed by referendum to ensure that the Statute of Westminster and both the Australia Acts can only be amended or repealed in accordance with Section 15(3) of both of the Australia Acts then it will have achieved a lot.
Such action will then ensure total sovereignty of the people over their constitutional documents.
In doing so, it will also prove to the Australian people that all our elected public servants remain subservient to the Australian community at all times as well as ensuring that our democracy is one of the best - if not the best - in the world.
No other constitutional change should be contemplated or undertaken until this proposal has been implemented by the Australian people!
The following quote from the late Richard McGarvie's book "Democracy; choosing Australia's republic" provides a profound summary: 'With the power from the Australia Acts, the Commonwealth Parliament, by Acts supported by the state Parliaments, can amend the Statute of Westminster that precludes it from amending the Commonwealth Constitution, the covering clauses or the preamble'.
Richard McGarvie was a former Supreme Court Judge and Governor of Victoria.
For further information on this subject, go to to read "Is Our Constitution Safe?".
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