Hon. Sir Joh Bjelke-Petersen (Barambah - Premier and Treasurer), by leave, without notice: I move–

"That leave be given to bring in a Bill to enable the constitutional arrangements affecting the Commonwealth and the States to be brought into conformity with the status of the Commonwealth of Australia as a sovereign, independent and federal nation."

Motion agreed to.

Bill presented and on motion of Sir Joh Bjelke-Petersen, read a first time.

"That the Bill be now read a second time."

This Bill is the first stage in the implementation of the agreement reached between all State Governments and the Commonwealth Government to remove the constitutional links which remain between Australia and the United Kingdom Parliament, Government and judicial system and to substitute new constitutional provisions and procedural arrangements. In particular, the implementation of the agreement will bring the constitutional arrangements affecting the States into conformity with the status of Australia as a sovereign, independent and federal nation, whose States are sovereign within their constitutional sphere.

The specific details of this agreement have been reached following extensive consultations that have taken place over a number of years between the Commonwealth, State and United Kingdom Governments and Her Majesty The Queen.

In those discussions, the Queensland Government has at all times played a leading role, in order to secure and enhance the constitutional position of the State, its relationship to the Crown, and the role of the Governor and Parliament of this State as free from interference by any other government. The agreement that has been reached has many elements. One or two are elements that Queensland would have preferred not to see, but most are elements that strengthen the position of this State and which, it is no secret, some of those involved in these consultations in Australia have been very reluctant to concede. That is why the agreement has to be taken as a whole, and why I commend the package, as a whole, to this House.

At the outset, I emphasise that nothing in the legislation will impair the constitutional position of Her Majesty in the Government of each State and the Commonwealth of Australia. On the contrary, the effect of the legislation will be to bring the Crown closer to the people and Government of this State, since the Queen, instead of being formally advised on State matters by United Kingdom Ministers, will be advised by the State Premier.

Putting the agreement into effect involves the State, Commonwealth and United Kingdom Parliaments. The form of relevant legislation has been agreed by all Governments.

Ultimately, the key elements will be an Act of the Federal Parliament and more significantly, in our view, an Act of the United Kingdom Parliament, each to be known as the Australia Act, and each identical in all material respects. The two Australia Acts will be proclaimed to come into operation simultaneously. By this unique legislative means, it has been possible to resolve the legal and political difficulties inherent in the historic step we are taking.

In accordance with the agreed procedure and to satisfy constitutional requirements, before the Australia Acts can be enacted, the Parliament and Government of every State will-

(1) request the Commonwealth Parliament, pursuant to section 51(38) of the Commonwealth Constitution, to enact its Australia Act:

(2) request and consent, in accordance with constitutional convention, to the United Kingdom Parliament enacting its Australia Act; and

(3) request and consent to the Commonwealth Parliament in turn requesting and consenting to the United Kingdom Parliament enacting its Australia Act. The request and consent of the Commonwealth Parliament to the Australia Act of the United Kingdom is required by section 4 of the Statute of Westminster.

Clauses 2, 3, and 4 respectively of the Bill now before the House achieve each of these three prerequisites.

The first schedule contains the proposed Australia Act of the Commonwealth Parliament.

The Second Schedule contains the proposed Australia (Request and Consent) Act by which the Commonwealth Parliament and Government, pursuant to section 4 of the Statute of Westminster, will request and consent to the enactment of the Australia Act of the United Kingdom. The United Kingdom Parliament’s Australia Act appears in the present Bill as a schedule to the Australia (Request and Consent) Act. It is identical in all material respects to the Australia Act of the Commonwealth Parliament. There are very minor differences, especially in the interpretation clause (clause 16), but these differences are necessary because they are Acts of different Parliaments.

It is hoped that all State Parliaments will pass this legislation in time for the Commonwealth Parliament to pass its Australia Bill and the Australia (Request and Consent) Bill during its current session. In this event, the United Kingdom Government has agreed to set aside time early in 1986 for the passage of its Australia Act. It is the United Kingdom Parliament’s Australia Act that, in the view of the Queensland Government, is the decisive measure in the whole set of enactments.

In brief, the Australia Acts will terminate all power that remains in the United Kingdom Parliament to make laws having effect as part of the law of the Commonwealth, a State or a Territory of Australia.

The Australia Acts will make important changes by removing existing fetters and limitations on the legislative powers of the Parliaments of the Australian States that stem, by and large, from their origins as English colonies. The residual powers of the United kingdom Parliament to make laws for the peace, order and good government of a State, will be expressly vested in the Parliament of the State. Any existing uncertainty as to the capacity of State Parliaments to make laws that have an extra-territorial operation will be removed, but not so as to confer any additional capacity to engage in relations with countries outside Australia.

The Colonial Laws Validity Act will not apply to State laws made after the commencement of the Australia Acts; nor will the common law doctrine of repugnancy.

An effect of these changes will be that, in future, State Parliaments will have full legislative power to repeal or alter any United Kingdom law that presently applies in the State.

The changes in the legislative powers of State Parliaments are subject to the Commonwealth Constitution and the Commonwealth Constitution Act and do not enable State Parliaments to alter the Commonwealth Constitution, the Commonwealth Constitution Act, the Statute of Westminister or the various provisions of our State Constitution. 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, 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, in which a State Supreme Court could find itself faced with two binding, yet conflicting, authorities.

Though some would have preferred to retain the jurisdiction of the Privy Council in matters of State law, the ending of its jurisdiction has been a necessary part of the overall agreement, an agreement which, as I have said, is highly advantageous to the State and its institutional relationship to the Crown. It must not be forgotten that constitutional changes initiated outside Queensland have meant that for more than 15 years the Privy Council has been unable to play any role in protecting the constitutional position off the State. Over the years, the Privy Council itself has increasingly indicated that it regards its role in relation to Australia as of decreasing legal significance, because of its remoteness from Australian conditions.

A major change to be effected by the Australia Acts concerns State Governors. Except for the power of appointment and dismissal of State Governors, Governors will be vested with all of the Queen’s powers and functions in respect of the States. Her Majesty will, however, be able to exercise any of those powers and functions when she is personally present in the State.

In the appointment and dismissal of State Governors, and in the exercise of her powers and functions when she is personally present in a State, Her Majesty will be directly advised by the Premier of the State concerned. The Australia Acts thus establish the constitutional role of the Premiers in directly advising the Queen. Her Majesty has already expressed her concurrence in this development, by which the role of the Crown will be adjusted to suit the needs of the Australian Federation.

Clause 7 of the Australia Acts specifically provides that Her Majesty’s representative in each State shall be the Governor. This provision, which fully secures the office of Governor, will render the establishment of a republic in Australia a very difficult exercise.

Whilst Her Majesty will be able to exercise any of her powers and functions normally performed by the Governor when she is personally present in the State, all State Premiers have expressly concurred in an undertaking that Her Majesty will be only formally advised to exercise those powers and functions, when in a State, where there has been mutual and prior agreement between the Queen and the Premier. It is expected that this will become accepted as a convention governing the circumstances in which the Queen will exercise such powers and functions, when in a State, where there has been mutual and prior agreement between the Queen and the Premier. It is expected that this will become accepted as a convention governing the circumstances in which the Queen will exercise such powers.

The Governor of a State in future will be able to assent to all laws enacted by the Parliament of a State. The Governor will no longer be required to withhold assent from certain types of Bills, nor will any Bill be reserved for the signification of Her Majesty’s pleasure. In future, Her Majesty will not be able to disallow an Act to which the Governor has assented (a royal power for the government of colonies that has not been exercised in Australia for generations), now shall any State Act be suspended pending the signification of Her Majesty’s pleasure.

The Australia Acts themselves and the Statute of Westminister in its application to Australia will be able to be repealed or amended in the future, but only by an Act of the Commonwealth Parliament passed at the request or with the concurrence of the Parliaments of all States. The Australia Acts also make necessary consequential changes to the Constitution of this State, and to similar constitutional provisions in Western Australia.

Before I turn to the detailed provisions of the Australia Acts, I should mention one other important element in the overall agreement about constitutional arrangements. It has been agreed that State Governments will continue to be able to use the imperial honours system if they wish.

In future, recommendations for honours at the instigation of State Governments will be tendered by the Premier of the State direct to Her Majesty and will no longer involve the provision of advice from the United Kingdom Ministers. Her Majesty has agreed to this new arrangement, and the United Kingdom is currently drafting amendments to the statutes and warrants governing the various honours to provide for this change. The existing arrangements for the Commonwealth Government to use the imperial honours system will continue, and the existing quota system will continue to apply to State and Commonwealth awards.

I turn now to the detailed provisions of the proposed Australia Acts. Clause 1 is designed to terminate the power of the United Kingdom Parliament to enact legislation having effect as part of Australian law, whether as law of the Commonwealth, of a State or of a Territory. It thereby achieves complete legislative independence of Australia from the United Kingdom.

Clause 2, which must be read subject to clauses 5 and 6, declares and enacts in subclause (1) that each State Parliament has full power to legislate extra-territorially, provided that laws are for the peace, order and good government of the State. This subclause corresponds to section 3 of the Statute of Westminister, which provides that the Commonwealth Parliament has full power to make laws having extra-territorial operation.

Subclause 3 is modelled on section 2 of the Statute of Westminister, which applies to Commonwealth legislation.

Clause 3 (1) will remove the fetters imposed upon the States by the Imperial Colonial Laws Validity Act 1865. State Parliaments will thereby be freed from section 2 of that Act, which prevented States from legislating inconsistently with United Kingdom Acts extending to the State. This provision, however, is prospective and will not validate any past State legislation already void for repugnancy; nor will the removal of the Colonial Laws Validity Act limitations remove the basis on which certain State constitutional provisions have been entrenched, since section 5 of the Colonial Laws Validity Act, which hitherto provided that basis, is replaced by the virtually identical provisions of clause 6.

Clause 3 (2), which will operate subject to clauses 5 and 6, will exclude the common law repugnancy doctrine and make it clear that State Parliaments will be able to enact legislation repugnant to the laws of England or to existing or future United Kingdom Acts, and that those Acts may be repealed or amended by a State parliament insofar as they form part of the law of the State.

Clause 4 expressly repeals sections 735 and 736 of the Imperial Merchant Shipping Act 1894 insofar as they form part of the laws of a State. This clause makes it unnecessary for the States to enact special legislation, pursuant to section 2 (2) and section 3 of the Australia Acts, to free themselves from the restrictions imposed by sections 735 and 736 of the Merchant Shipping Act, under which certain State laws on merchant shipping require confirmation of the Queen acting on the advice of United kingdom Ministers, or must be reserved for the signification of the Queen’s pleasure. Clause 4 corresponds to section 5 of the Statute of Westminister 1931 in relation to Commonwealth Acts.

Clause 5 qualifies clause 2 and clause 3 (2) by making their grant or declaration of State legislative power subject to the Commonwealth of Australia Constitution Act and the Commonwealth Constitution. Clause 5 goes on to provide that those clauses do not operate so as to give effect to any provision of a State Act which would repeal, amend or be repugnant to the Australia Acts, the Commonwealth of Australia Constitution Act, the Commonwealth Constitution or the Statute of Westminister, as amended and in force from time to time.

Clause 6 preserves the entrenchment provisions of State Constitutions by providing that the law of a State 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 Parliament, whether before or after the commencement of the Australia Acts. This provision is included because of the repeal of the Colonial Laws Validity Act (section 5) by the Australia Acts, which hitherto has supported the entrenching provisions in the constitutional law of the State.

Clause 7 deals with the powers and functions of Her Majesty and the Governor in respect of the States. By subclause (2), and subject to later subclauses, the Governor of a State, as Her Majesty’s representative, is invested with all of Her Majesty’s powers and functions in respect of the State, and in future, the Governor, not Her Majesty’s powers and functions in respect of the State, and in future, the Governor, not Her Majesty (save when she is personally present in the State), will exercise those powers. The word "only" is included in subclause (2), after informal consideration of the proposal by Her Majesty, to avoid The possibility of Her Majesty being advised to override a decision reached by a Governor, or of Her Majesty being advised to act in a manner which has not been placed before the Governor.

By subclause (3), Her Majesty will continue to appoint and to terminate the appointment of the Governor of a State.

By subclause (4), when Her Majesty is present in a State, she may exercise any of her powers and functions normally exercised by the Governor.

Subclause (5) provides for the Premier to advise Her Majesty in relation to the exercise by Her Majesty of her powers and functions in respect of the State. Her Majesty has formally indicated her concurrence in this major constitutional development, which is unique. The phrase "The advice" precludes formal advice from any other source and will, inter alia, preclude conflicting formal advice from United Kingdom or Commonwealth Ministers, or from Premiers of other States.

With respect to subclauses (4) and (5), as I previously indicated, all Premiers have formally agreed that the exercise by Her Majesty of her powers and functions when in a State will only occur where there has been mutual and prior agreement between the respective Premier and Her Majesty.

It is also agreed that clause 7 has no operation with respect to imperial honours.

Clauses 8 and 9 are designed to put an end to the mechanisms dating from colonial days whereby supervision of the legislation enacted by State Parliaments was achieved.

Clause 8 will put an end to existing powers of the Queen to disallow a State Act to which the Governor has assented and will prevent any requirement for the operation of State laws to be suspended pending signification of the Queen’s pleasure.

Clause 9 is aimed at discontinuing the role of Her Majesty in assenting to Bills of State Parliaments, a role which has long since been a pure formality, a residue of former methods of imperial control over colonies.

Clause 9(1) provides that any law or instrument requiring a Governor to withhold assent from any Bill passed by a State Parliament in accordance with any applicable manner and form requirement, is to be of no effect. An example of such a requirement is clause V11 of the current Instructions to the Governor.

Clause 9 (2) will preclude the operation of any law or instrument which requires the reservation of any State Bill for the signification of Her Majesty’s pleasure. Examples of such requirements may be found in the Order in Council of 1859 establishing the first Government of Queensland, in section 1 of the Australian States Constitution Act 1907, and in section 3 of the Constitution Act Amendment Act of 1934.

Clause 10 corresponds to sections in various United Kingdom Independence Acts and provides that, after the commencement of the Acts, the United Kingdom Government is to have no responsibility for the government of any State.

Clause 11 will terminate appeals to the Privy Council from Australian courts. I have already commented on this element of the agreement. The only point to be made here is that clause 11 (4) ensures that where an appeal has been instituted or special leave to appeal has been granted before the commencement of the Australia Acts, such appeals may proceed.

Clause 12, which supplements clause 1 expressly repeals section 4, sections 9 (2) and (3), and section 10 (2) of the Statute of Westminister insofar as they form part of Australian law.

Section 4 of the Statute of Westminister provides that no United Kingdom Act passed after the commencement of the Statute shall extend, or be deemed to extend, to a Dominion as a part of the law of the Dominion, unless it is expressly declared in that Act that Dominion has requested, and consented to, the enactment thereof (and section 9 (3) of the Statute of Westminister provides that, in the case of Australia, the relevant request and consent is that of the Commonwealth Parliament and Government). Section 9 (2) of the Statute of Westminister preserves the State’s power to request the United Kingdom Parliament to legislate for the State in respect of certain matters, namely, matters within the authority of the State and not of the Commonwealth Parliament of Government. Sections 4 and 9 (2) of the Statute of Westminister will be superseded by clause 1 of the Australia Acts, which as I have already said, will abolish completely any power of the United Kingdom Parliament to legislate for Australia.

The remaining provision of the Statute of Westminister which has needed to be dealt with by the Australia Acts is section 10 (2). That subsection provides that a Dominion Parliament may at any time revoke its adoption of the statute. That provision is clearly inappropriate in the new constitutional structure which the Australia Acts embody.

Clause 13 amends certain provisions of the Queensland Constitution Acts. These provisions, like the similar provisions in Western Australia which are amended by clause 14, were introduced in 1977 to protect the office of Governor. Now that the position of the Governor is to be fully secured by clause 7 of these Bills, and the functions formerly exercised by British Ministers are to be fully transferred to the Queensland Government by clauses 7 (9) and 10, it is necessary to remove from our Constitution Acts the reference to United Kingdom instrumentalities and persons.

Subclause (2) of clause 13 removes from section 11A of the Constitution Acts (Queensland) the references to the signet (a seal held by the Secretary of State in the United Kingdom), and to the Great Seal of the United Kingdom. The office of Governor is now sufficiently constituted by section 11A itself. Subclause (2) also removes a part of the definition of Administrator of the Government of the State, a part which is now redundant and can better be provided for by the new statutory or prerogative measures which will be needed to replace the existing letters patent and Royal Instructions at the same time as, or immediately before, the Australia Acts.

Subclause (5) removes section 11B of the Constitution Acts (Queensland) its references to instructions to the Governor from the Privy Council or a Secretary of State in the United Kingdom. The instructions that were contemplated by section 11B concerned the reservation of Bills, and clause 9 of these Australia Acts ensures that there will in future be no need for, or possibility of, reservation. The other provisions of subclause (3) remove further references to the signet.

Subclause (4) makes a purely consequential amendment to section 14 of the Constitution Acts, in view of the amendment of section 11B.

What the Parliament sought to achieve in 1977 is now fully achieved by the provisions of these Australia Acts, which secure the provision of the Governor, and the relationship of Queensland Ministers to the Crown and to the Queen herself, is a way never before achieved.

Clause 15 is designed to secure the Australia Acts and the Statute of Westminister as it operates in Australia, against any amendment or repeal which does not have support throughout Australia. A unique system devised by which such amendment or repeal may only be made if all State Parliaments and the Commonwealth Parliament agree.

Subclause (3) leaves open the possibility that a future amendment to the Commonwealth Constitution using the section 128 referendum procedure might give the Commonwealth Parliament power to effect some alternation to the Australia Acts or the Statute of Westminister.

Clause’s 16 and 17 will provide for matters of interpretation, short title and commencement. There are minor differences in clauses 16 and 17 between the United Kingdom and the Commonwealth Australia Acts because they will be Acts of different Parliaments, brought into force simultaneously by different methods of proclamation. An example of these minor differences is that the Statute of Westminister does not need defining in the United Kingdom Act. The Commonwealth Australia Bill bears the date "1986" since it is proposed that it should commence operation at the same time as the United Kingdom Australia Act.