Canberra, 6 April 1973
Brief for Discussions with The Queen—I. Letters of Credence, 2. Agreement
A draft Instrument of Assignment by The Queen of certain powers to the Governor-General, including the power to sign Letters of Credence, is attached as Annex A. It was prepared by the First Parliamentary Counsel following interdepartmental study pursuant to the Prime Minister’s direction of9 December 1972.
2. The interdepartmental study led to the following conclusions:–
(a) There is no legal or constitutional reason why the proposed assignment of powers should not be made.
(b) There is a possible problem in diplomatic practice, arising from a requirement of strict reciprocity in accreditation. Certain Heads of State might object to Letters of Credence not signed by The Queen. The Queen herself might also be reluctant to assign the power to sign Letters of Credence, on the ground that these are letters personally addressed by one Head of State to another (apparently this was The Queen’s response to the Canadian approach in March I 972).1
3. Signature by the Governor-General would be consistent with the Vienna Convention on Diplomatic Relations. Article 14(1) of the Convention refers to ‘ambassadors or nuncios accredited to Heads of State’ without importing that they should be accredited by Heads of State.
Attitudes of Heads of State
4. Our Ambassadors in Tokyo, The Hague, Bangkok, Vienna, Teheran and Stockholm have made discreet soundings regarding the likely reaction of the Heads of State to which they are accredited to Letters signed by the Governor-General ‘By Her Majesty’s Command’. The answers to date from this sampling, while not conclusive, are favourable:–
Bangkok —The persons contacted considered that the proposal would be acceptable to the King of Thailand provided The Queen raised no objections and provided it was acceptable to other countries with monarchs.
The Hague —The Chief of Protocol thought that The Queen of the Netherlands would have no objections to credentials in the form envisaged provided she was sure they were also acceptable to Queen Elizabeth. The view of the Grand Master of the Household was similar.
Vienna —Legal advice received by the Chief of Protocol was that this is purely a question of Australian Constitutional practice and there is consequently no reason why the proposed arrangements and formula would not be acceptable. The only circumstance in which difficulties could arise would be one of disagreement between Canberra and London.
Stockholm —The person contacted has said that the question has proved unexpectedly ‘tricky’, but he hoped to provide an answer soon.
Tokyo (awaited)
Teheran (awaited)
5. We should need to be assured of a high incidence of acceptance by foreign states before our present practice could be changed. If even a few Heads of State were to object, it would seem necessary to continue present practice, because it would be invidious to have some Letters signed by The Queen while the rest were signed by the Governor-General. If, however, the favourable reactions to date prove to be widely representative, it could be that acceptance by a majority would lead to general acceptance by all foreign Heads of State.
6. The Instrument of Assignment takes account of the likelihood that foreign Heads of State would regard Letters of Credence, signed by the Governor-General, more favourably if signed ‘in The Queen’s name and on her behalf’. It does not, however, make it mandatory for them to be signed: they could, if it were thought to be practicable and appropriate, be signed in the Governor-General’s own name. The Instrument also takes account of the need, until such time as their designation may be changed to ‘Ambassador’, to accredit Australian High Commissioners to republics and other States within the Commonwealth of which The Queen is not the Head of State.
Agrement, Special Assignments, Acceptance of Letters
7. Judging from the reaction of Palace authorities to the Canadian approach of March 1972, and from soundings taken by the Secretary of the Attorney-General’s Department during his visit to London in January 1973, there would seem to be no substantial problem in obtaining the Queen’s agreement to assign powers to the Governor-General to act on Cabinet recommendations for the appointment of Australian ambassadors and for the acceptance of foreign ambassadors (i.e., to grant and receive agrement), to sign credentials of Australian Ambassadors on special missions in urgent circumstances (such as attendance of funerals of Heads of State), and to accept foreign ambassadors’ Letters of Credence and Letters of Recall. All these powers are comprehended in the attached draft Instrument of Assignment.
Delegation to the Administrator
8. During the absence from Australia of the Governor-General, all the latter’s powers could be exercised by the Administrator, who a holds dormant commission from The Queen. In practice, however, it might be preferable that the powers thus delegated should not be exercised by the Administrator, except in cases of emergency.
Course of Action
9. A submission of 3 April recommended to the Prime Minister that he should seek from The Queen the assignment of powers specified in the attached draft Instrument, but with the understanding that, if foreign Heads of State would not accept Letters of Credence signed by the Governor-General, the Queen would in that eventuality be asked to continue to sign them until such time as alternative practice might develop.
10. It was also recommended to the Prime Minister that, if the Queen were not pleased to agree, he would seek from her the assignment for the Governor-General of the other powers in this field, excepting only the power to sign Letters of Credence (see paragraph 7 above).
11. The Palace has been informed of the approach which it is proposed to make (paragraph 9 above), but not of the fallback position (paragraph 10).
12. The Prime Minister has directed that the Canadian and New Zealand Governments be informed privately of the Australian approach immediately after you have called on The Queen.
ANNEXA
DRAFT INSTRUMENT OF ASSIGNMENT BY THE QUEEN OF CERTAIN
POWERS TO THE GOVERNOR-GENERAL
ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith:
To all the singular to whom these Presents shall come
GREETING:
WHEREAS section two of the Constitution of Australia makes certain provision for the exercise by the Governor-General of Australia of such powers and functions of the Queen as Her Majesty may be pleased to assign to him:
Now therefore, acting with the advice of the Executive Council of Australia, and in the exercise of all powers Us thereunto enabling, We do hereby assign to the Governor General of Australia, in addition to all other powers and functions previously assigned to the Governor-General, all Our powers and functions in respect of the following matters:–
(a) the appointment of Ambassadors Extraordinary and Plenipotentiary to represent the interests of Australia, and the termination of appointments of, and the recall of, Ambassadors Extraordinary and Plenipotentiary representing the interests of Australia, whether appointed by Us or by the Governor-General;
(b) the appointment of High Commissioners to represent the interests of Australia in states within the Commonwealth of Nations but not included in Our Realms and Territories, and the termination of appointments of, and the recall of, High Commissioners representing the interests of Australia in such states, whether appointed by Us or by the Governor-General;
(c) the recognition of, and the withdrawal of the recognition of, Ambassadors Extraordinary and Plenipotentiary, or other diplomatic representatives, appointed to represent the interests of foreign states in Australia; and
(d) the execution, issue and revocation, and the receipt and acceptance, of instruments for or in connexion with any of the foregoing matters, including the execution and issue of Commissions of appointment and Letters of Credence, and We authorize the Governor-General to exercise any of those powers and functions in Our name and on Our behalf.
Given at Our Court of St. James’s, this day of in the year of our Lord, One thousand nine hundred and seventy-three, and in the year of Our Reign.
By Her Majesty’s Command
1 See Document 439.
[NAA: A1209, 1973/6439]