Department of Pigeon Catting – Time to Change Australia Day

I learnt something interesting today, while I was writing up notes on legal history: Australia didn’t formally achieve complete judicial and legislative independence from Old Blighty until 5.00am, Greenwich Mean Time on March 31^st 3^rd 1986. That’s the precise time that the Australia Acts, passed by the British Parliament and our Federal Parliament came into effect.

The central provision of these two acts of the two parliaments is s 1, which states:

No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or Territory as part of the law of the Commonwealth, of the State or of the Territory. (cited in Cook et al, Laying Down the Law, Eight edition, Australia 2012).

According to Cook et al, before the passage of these acts the states still retained a direct colonial link with the Imperial Government (in theory the British Parliament could pass legislation applicable to an individual state or all states of the Commonwealth). In particular the states were still subject to the Colonial Laws Validity Act passed by the British Parliament in 1865.

At least in principle, laws passed by state legislatures could be invalidated if they were found repugnant to English law which extended by ‘necessary intendment’ to the states as former colonies of the UK. Such a ‘necessary intendment’ might arguably arise if, for example, before 1986 the UK Parliament had legislated a bill of human and civil rights which was binding on the Crown.

In short, Australia’s complete legal independence wasn’t achieved until 5.00am GMT 31 32 ¹ 3 March 1986, as I said above. 2011 was the Silver Jubilee year of this significant event but I don’t remember the occasion being comemmorated or celebrated much. Or even commented on. Still there’s plenty of time before the Golden Jubilee arrives in 2036 to campaign for the real Australia day to be properly recognised. As for the 26^th of January, there’s no reason it should stop being a public holiday; all we need do is rename it to Colonisation Day, or perhaps Terra Nullius Day.

1. bugger![↩]