Canberra, 12 April 1973
Following our telephone conversation on 24 January your High Commissioner in Canberra gave me a message in writing from you on the subject of appeals to the Privy Council from Australian Courts and related matters.
I must first give you my apology for not getting in touch with you again long before this. So many urgent matters have demanded the attention of my government and its advisers that it has not been possible for the necessary thorough consideration to be given to all the matters referred to in, or arising out of, your message.
I agree entirely with your thought that it would be best not to deal with the situation in a piecemeal fashion. I agree also that it should be handled between Prime Ministers and our respective officers.
I shall shortly have the pleasure of making my first visit to England as Prime Minister and of talking with you while I am there. Obviously, neither the state of preparation nor the time available while I am in London will be sufficient to enable the discussion to be definitive. I shall nevertheless, in this letter, mention some of the more important matters that are in my mind.
I believe that Australia’s position as a nation requires that communications affecting Australia would take place only between the United Kingdom Government and, at the Australian end, the Australian Government at Canberra. This is, generally speaking, already the position. I consider that it should be the position in regard to all matters, including matters in which the individual Australian States may be interested.
On the specific subject of appeals to the Privy Council, I am inclined now to think that it would be just as well to concentrate forthwith on the question of abolition of appeals in those matters in which appeals still lie rather than to pursue my earlier thought of providing for appeals to be heard in Australia by Australian Privy Councillors. This was, in any event, to have been simply a first step leading to eventual abolition. On the question of the procedures to be adopted for abolition one way seems to be to employ the provisions of section 4 of the Statute of Westminster, read with section 9(3.) of the Statute. Whether anything should be done in addition could be examined as discussions between proceed.
Turning to another subject, the previous Australian Government took up with you last year the question of removing the restrictions that presently rest on the States with regard to the amendment of Old United Kingdom merchant shipping legislation that still applies in the States. My Government is examining the procedures then proposed and I shall be in touch with you further concerning this particular subject.
There is also the question of freeing the States generally from the restrictions resulting from the continued application to them of section 2 of the Colonial Laws Validity Act. Perhaps action, and the procedures to be followed, in this connection should be considered along with the question of amendment of merchant shipping legislation applying to the States.1
I appreciate the observation in your written message concerning the position of your Government in the event of any dispute arising between the Australian Government and the State Governments in respect of any of the matters I have already mentioned. I am giving this my own personal attention.
The Australian constitution contains some provisions that appear to be outdated. In particular, section 59 of the Constitution, relating to disallowance of laws by the Queen, has long since fallen into disuse—indeed, I have no knowledge of its ever having been employed. There have been one or two occasions in recent years when either an attempt has been made by a citizen to have section 59 invoked or the possibility of doing so has been raised publicly. I think that it goes without saying that Her Majesty would be guided by the advice of Her Australian Ministers, but the continued presence of the provision in the Constitution is not only an anachronism but it could, I suggest, be a possible source of embarrassment to The Queen.
During my stay in London I propose also to discuss certain matters affecting the position of the Governor-General. They concern the possible granting by The Queen of powers relating to accreditation of Heads of diplomatic missions, and amendment of the Royal Style and Titles. These, of course, are matters which I shall take up with the Palace.
I suggest that our discussion be followed up as soon as practicable by an exchange of views between our officers with the assistance of legal advisers.
1 Anne Twomey has written: ‘The Colonial Laws Validity Act 1865 (Imperial) confirmed that the colonial legislatures could enact laws that were inconsistent with ordinary British laws. However, it provided that if a British law applied to the colony expressly or by necessary intendment, it would have paramount force and any colonial law that was “repugnant” to (that is, inconsistent with) that British law was void and inoperative to the extent of that repugnancy.
This could lead to unfair consequences, particularly when an old British law continued to apply in the States, even though it had been amended or repealed in its application to the United Kingdom. For example, the Merchant Shipping Act 1894 (UK) applied to the Australian colonies, and the States, by paramount force. Section 503 of that Act limited damages payable by the owners of a ship to persons injured or killed on the ship to an amount not exceeding £15 for each ton of the ship’s tonnage’ (Anne Twomey, The chameleon crown: the Queen and her Australian governors (Sydney, 2006), p. 15).
An attempt in 1966 to allow the states to amend the Merchant Shipping Act was abandoned because the states were not enthusiastic about terminating their residual links with the UK. In 1972 the Commonwealth Cabinet approached the UK to enact legislation, the intention being that this would be done pursuant to a legislative request from the Commonwealth and state parliaments. The Heath Government replied in November 1972 that it would proceed as requested. Officials were deciding the form of legislation when the Whitlam Government was elected. The new government requested that action cease. Whitlam and his ministers wanted to remove the colonial relics, but not if this meant increasing state powers. Hence the Commonwealth Government blocked an attempt by the states to achieve a Statute of Westminster for the states and one which would have prevented the Westminster Parliament legislating with respect to the states without their request and consent, thus releasing them from the application of the Colonial Laws Validity Act. In a similar manner, the Commonwealth Government also ended efforts to free the states from the constraints of the 1894 Merchant Shipping Act as this would have increased states’ legislative power in relation to certain aspects of shipping (ibid., pp. 86–88). ‘The Whitlam Government’s desire to assert Australian “independence” and to terminate anachronistic links with the United Kingdom was overcome by its desire for power over the States’ (ibid., p 88).
[NAA: A1209, 1973/6292]