Canberra, 22 December 1972
Confidential
Assignment of Powers to the Governor-General
Following the Minister’s instructions we have asked the First Parliamentary Counsel (Mr Comans) to draft the necessary instruments to enable the Australian Government to ask the Queen to assign power to the Governor-General to accredit ambassadors. Counsel is working on this task.
2. As you may have noted from Ottawa’s telegrams, the Canadian Government in March this year sounded out the Palace about the assigning of a bundle of five powers to the Governor-General of Canada. These were, in brief:
(a) to sign ambassadors’ Letters of Credence and Letters of Recall;
(b) to accept Cabinet recommendations on the establishment and severance of relations with foreign governments;
(c) to accept Cabinet recommendations on the appointment and recall of Canadian ambassadors;
(d) to accept and file foreign ambassadors’ Letters of Credence;
(e) to accept and file foreign ambassadors’ Letters of Recall.
3. It appears that The Queen demurred to the request for the first of these powers, on the ground that Letters of Credence and Letters of Recall are addressed personally by one Head of State to another. She indicated that she had no serious objection to acceding to the other four requests.
4. This has now leaked to the press in Ottawa. The attached article,2 which appeared in the ‘Ottawa Citizen’ on 13 December, apparently gives a fairly accurate account of the exchanges with the Palace. The Queen is said to have pointed out that foreign Heads of State might misunderstand the presence of any signature but her own on the credentials of Canadian envoys.
5. Mr Trudeau has backtracked sharply from his 1969 position (when he wanted these powers assigned), and the present official Canadian public position is:
‘No action to implement any of the five proposals’.
Domestic politics are cited as one reason for Mr Trudeau’s new stance. The Canadians, however, still seem to want to keep open the question of the Governor-General being given the power to sign credentials in cases of ‘exceptional urgency’–for example, when a special emissary has to be sent urgently to take part in a particular occasion, or when an ambassador has to be placed in post quickly.
6. Our own Minister has noted the present Canadian position as indicated in Ottawa’s telegrams, but is keen to press on with a request from Australia to the Palace. He has orally indicated specifically that he wants the Governor-General to be empowered to sign Letters of Credence and Letters of Recall. We have drawn this to the attention of the Parliamentary Counsel.
7. Counsel is accordingly trying to find other forms of words for Letters of Credence and Letters of Recall. This has not proved to be an easy drafting exercise to date. (In the case of Letters to Kings, for example, The Queen’s salutation is ‘Sir My Brother’ and the subscription is ‘Sir My Brother, Your Majesty’s Good Sister’. A Letter of Credence from the Queen bears the Royal Cipher in the letterhead. A Letter from the Governor-General would presumably bear the St Edward Crown which is not the emblem of a Head of State.) But if the problem of drafting non-royal Letters of Credence can be overcome there would seem to be no serious difficulty in drafting the necessary Assignment of Power to the Governor-General, and no serious difficulty with the Palace regarding the assignment of the ancillary powers mentioned in (c), (d), and (e) of paragraph 2 above, and of the power to sign ambassadors’ Commissions.
8. There is, however, another difficulty—the possibility that some foreign Heads of State may not be willing to accept a Letter of Credence signed by anyone other than a Head of State. The Queen of the Netherlands or the Emperor of Ethiopia, for example, might conceivably reject such a Letter, causing us some embarrassment. (Even though the Benelux countries extended to the Governor-General of Canada honours only just short of those of a Head of State when he visited those countries in 1969, their Sovereigns might be ‘sticky’ about royal signatures.)
9. You will note that the Canadians, in their soundings of the Palace, sought for the Governor-General the power to accept Cabinet recommendations regarding the acceptance and severance of diplomatic relations with foreign countries. It is not yet clear to us why the Canadians sought assignment of this power. In Australia it has not been the practice, at least for some years, to involve the Governor-General in the establishment or severance of diplomatic relations. We have asked our High Commissioner in Ottawa to ascertain the reason for the Canadians including it among the powers sought.
10. The Canadian exchanges with the Palace are also curious in another and more general respect, when examined in the light of the Letters Patent issued by the King to the Governor-General of Canada in 1947. In a press release on that occasion the Canadian Prime Minister (Mr Mackenzie King)3 stated:
This does not limit the King’s prerogatives. Nor does it necessitate any change in the present practice under which certain matters are submitted by the Canadian Government to the King personally. However, it will be legally possible for the Governor-General, on the advice of Canadian Ministers, to exercise any of the powers and authorities of the Crown in respect of Canada, without the necessity of a submission being made to His Majesty. (The new powers and authorities include, among others, Royal Full Powers for the signing of treaties, ratification of treaties, and the issuance of Letters of Credence for Ambassadors.)
There will be no legal necessity to alter existing practices. However, the Government of Canada will be in a position to determine, in any prerogative matter affecting Canada, whether the submission should go to His Majesty or to the Governor-General.’
11. On the same occasion in 1947 the Canadian Secretary of State for External Affairs informed Canadian ambassadors that the new Letters Patent gave in effect ‘a blanket delegation of Royal authority to the Governor-General, who is thereby empowered, on the advice of the Canadian Government to do anything the King could formerly do with respect to Canada. These powers include (in addition to those specially mentioned in the press release) declarations of war and the conferment of honours and awards’.
12. In the light of the recent Canadian exchanges with the Palace we could expect some delay to occur following a request to the Queen to assign power to the Governor-General of Australia to sign Letters of Credence and Letters of Recall. On the other hand, the Palace might yield fairly quickly regarding the ancillary powers in respect of accreditation, in which case the Governor-General would be enabled to approve ambassadorial appointments without prior reference to the Palace, even if the subsequent Letters were still signed by the Queen.
13. If the power to appoint ambassadors without prior reference to The Queen were delegated to the Governor-General of Australia, and if she continued to sign their Letters thereafter, her lavish expressions of personal confidence in officers of whom she had no personal knowledge would become just a little more anomalous and unreal, but there might be scope for some changes in the traditional forms.
14. As for Australian Ambassadors’ and High Commissioners’ Commissions, these are at present signed by the Queen. In Canada they are issued under the Great Seal of Canada, and signed by the Governor-General, the Attorney-General and the Registrar-General. If it is desired to retain the system of issuing a Commission to each ambassador it would seem appropriate to ask the Parliamentary Counsel to include the power to issue such Commissions among the powers requested for the Governor-General.
Meeting of Commonwealth Law Ministers
15. As you are aware, the Attorney-General will be attending a conference of Law Ministers in London from 15–19 January. The previous Attorney-General had proposed to the previous Prime Minister that he discuss the question of the Governor-General’s powers informally with the British, Canadian and New Zealand Law Ministers during their presence in London.
16. Whether our present Minister would wish the Attorney-General to involve himself in this matter while in London next month is not known. You might think it useful to sound him out on this question. (If a request for an assignment of Power were received by the Palace prior to the Commonwealth Law Ministers’ meeting, the Attorney-General might well be approached in the matter by some British authority while in London.)
17. The foregoing is for your information, in case you may wish to brief the Minister on the present position. When a reply is received from the Parliamentary Counsel I shall advise you further.
1 A.H. Loomes, First Assistant Secretary, Consular and Legal Division, Department of Foreign Affairs, 1972–74.
2 Not published.
3 Prime Minister of Canada, 1935–48.
[NAA: A1209, 1973/6398]