Canberra, 18 August 1967
Confidential
Note on Cabinet Submission No. 285: Appeals to the Privy Council
This is the second Submission1 on this subject since 1966.
In July last year the then Attorney-General recommended abolition of appeals to the Privy Council to the fullest possible extent by Commonwealth legislation (that is, not complete abolition, because there can be appeals direct from State Courts). Cabinet, which met while the Prime Minister was overseas, was disposed to agree but took no firm decision as it felt the timing of a change of this nature was important. In particular, it felt that regard needed to be had to the importance of maintaining links with Britain in the context of encouraging the maintenance of a British presence East of Suez.
It was left to the Attorney-General to discuss the matter with the Prime Minister and inform him of Cabinet’s views. This he did and the Prime Minister volunteered to talk over the question with the British Prime Minister. In the event, no talk took place.
This latest Submission, in effect, recommends –
(a) on cases in which appeals may still be taken direct from the Supreme Court of a State to the Privy Council—no change;
(b) in cases where there may be appeals from the High Court involving inter se constitutional questions—no change;
(c) in other cases involving appeals from the High Court—abolition of appeals in all matters of Federal Jurisdiction (other than inter se matters), but continuation of the present rights of appeal in purely State cases.
This represents a modification of the 1966 recommendation in respect of cases referred to in (b) and the State cases mentioned in (c). The argument for the modification in (b) is based on the practical situation—only one case of this kind has gone to appeal, in 1912—and the need for a constitutional amendment if the change is to be made. The modification in (c) is to avoid conflict in lines of authority with other State cases going direct from the State Supreme Court to the Privy Council.
The subject as a whole is one unlikely to generate much heat. The proposals as they stand will please neither of the extreme views—those favouring complete abolition of appeals and those wanting retention of links with Britain. However in our view, the Attorney-General has material enough for an effective reply to any such criticism, and we support the recommendations.
Cabinet paused last year because of the need to look carefully at any question of links with Britain—particularly in respect of the East of Suez decision. Now that the British have announced withdrawal of land forces East of Suez it might be thought that this consideration loses weight. It could equally be argued that the very nature of the British decision makes the retention of links all the more necessary.2
1 See Document 420.
2 Cabinet approved these recommendations on 22 August 1967, decision no. 516 on submission no. 285 (NAA: A5842 volume 10).
[NAA: A5619, C47]