London, 24 April 1973
Confidential
Constitutional Issues
1. Mr Whitlam explained his general intention that Australia should be seen to be fully independent internationally and mentioned relevant decisions reached in his discussions with The Queen. He then referred to the question of appeals from Australia to the Privy Council, which his Attorney General, Senator Murphy, had discussed in London in January.2
2. Sir A Douglas Home said that our aim was to find a way of doing what the Australian Government wanted but by constitutionally proper means.
3. Mr Whitlam said that he thought that a political decision by the British Government was necessary. It was anomalous and inconsistent with Australia’s sovereignty for appeals from Australian courts to be heard outside Australia by judges not appointed by the Australian Government. The Australian Constitution allowed the Australian Parliament to ‘limit’ appeals to the Privy Council but did not necessarily empower them to stop such appeals altogether. They had only so far been stopped in the case of appeals from the High Court on federal matters. Mr Whitlam suggested that an agreement, or treaty, should be made between the Australian and British Governments that each would introduce legislation in their respective parliaments, in accordance with the ‘request and consent’ procedure laid down in the Statute of Westminster, to abolish all appeals which may still be from Australian courts to the Privy Council. Under Section 51 of the Australian Constitution covering external affairs the Australian Government was empowered to make an agreement of this kind with another country. The Act to be passed by the Australian Parliament would request, and consent to, the necessary legislation at Westminster to abolish the appeals in question.
4. Lord Hailsham explained that the British Government had always taken the view that independent Commonwealth countries could allow appeals from their courts to the Privy Council to continue or not as they wished. We had always stood ready to abolish Privy Council jurisdiction in accordance with properly framed requests from the governments of the countries concerned. In Australia, however, the legal position was complicated. The right of appeal to the Privy Council was written into the Australian Constitution. That Constitution also contained a mechanism for amending it. He suggested that the Australian Government might consider using this mechanism in order to give themselves the necessary power to abolish appeals to the Privy Council without reference to the British Government. Mr Whitlam said that if the British Government refused to agree to introduce legislation at the request of the Australian Government then use of the referendum procedure for amending the Australian Constitution would clearly be an alternative way of proceeding. But he was entitled to ask the British Government to agree to what he proposed.
5. Lord Hailsham said that under the Statute of Westminster the British Government was in effect ‘trustee’ for the Australian Federal system. We had originally agreed to act as ‘trustee’ in this way at the request of the Australian Government. The Statute of Westminster was designed to make it more difficult for the Commonwealth Government of Australia to override the wishes of the Australian States. He said that, on receipt of a request from Australia for legislation at Westminster to abolish these appeals the British Government would inevitably come under pressure from the Australian States and their sympathisers in Parliament and the press who would claim, with a certain degree of plausibility, that by agreeing to introduce such legislation against the wishes of the States we would be betraying our responsibilities as laid down in the Statute of Westminster. The legislation might pass but only after serious embarrassment to the British Government. He did not think that legislation passed in such circumstances could be challenged in the British courts, but what its effect would be in Australia was not for him to say.
6. Sir Peter Rawlinson asked whether the Australian act setting out the request for legislation at Westminster could be challenged in the courts. Mr Ellicott thought that it would be open to challenge in the Australian High Court. It was also possible that it might be challenged in the Privy Council by means of a direct petition.
7. Mr Whitlam asked what the British Government’s reaction would be if they were asked by the Australian Government, under the request and consent procedure, to introduce the necessary legislation at Westminster. The Australian Government needed to know, before introducing such legislation, that the British Government would act on the basis of the request. Lord Hailsham said that by doing this the Australian Government would be asking the British Government to suffer a degree of political odium, particularly from its own backbenchers and independent members of the House of Lords. Sir Peter Rawlinson stressed the importance of whether or not the Australian legislation in question would be knowingly open to challenge in Australia. He did not think it could be challenged in the Privy Council. But if a challenge in the Australian courts were unsuccessful (or if the opportunity was available but not taken) the political odium for the British Government would be much diminished since the charge of acting on the basis of an unconstitutional request could hardly then be sustained.
8. Lord Hailsham then suggested that abolition of appeals to the Privy Council was only one of the issues on which present or future Australian Commonwealth Governments might want the UK to take action against the wishes of the Australian States. He asked whether the Australian Government should not request Britain to abolish altogether those parts of the Statute of Westminster which put us in the position of ‘trustee’ for the Australian Federal system. The individual issues could thus all be settled at one stroke and the British Government would no longer be liable to the embarrassment to which their present position exposed them. Mr Whitlam said that the Australian Government would run into serious trouble in Australia if it acted in this way. In effect that would be seeking to change the whole Federal system.
9. Mr Whitlam referred to the agreement reached between the previous Australian Government and the British Government to remove the application of certain provisions of the Merchant Shipping Act of 1894 to the Australian States. He said that his Government did not wish to follow the procedure previously agreed. Instead they proposed to proceed by amendment of the Australian Constitution.
10. Mr Whitlam said that in some respects his government did not- mind the Australian States having a residual colonial status since this helped to make clear that they were not fully sovereign. For this reason he did not at present want to press for abolition of the application to the States of the Colonial Laws Validity Act since to do so might seem to increase the claim of the States to sovereignty.
11. Mr Whitlam then asked whether the British Government would agree to legislate if the Australian enactment requesting and consenting to such legislation were not challenged successfully in the courts. Sir A Douglas-Home asked whether the agreement of the States might not be sought at one of Mr Whitlam’s meetings with State Premiers. Mr Whitlam said that the Australian States would not agree and pointed out that, even if they did, legislation at Westminster would still be needed and there might still be internal opposition in Australia. Sir A Douglas-Home suggested that Mr Whitlam should continue discussion of this subject with Mr Heath.
1 The UK was represented by Douglas-Home, Hailsham, Sir Peter Rawlinson (Attorney-General, 1970–74), Royle, Sir Morrice James (High Commissioner in Canberra) and officials. Australia was represented by Whitlam, Armstrong (High Commissioner), Bunting and officials including, inter alia, Robert James Ellicott (Solicitor General, 1969–73; Attorney-General, 1975–77, in the Fraser Government), Harders and Shann.
Commenting at the end of Whitlam’s visit but before a record had been made available of Heath’s private talk with the Australian Prime Minister (see Document 462), J.K. Hickman of the Foreign and Commonwealth Office South-West Pacific Department observed that while ‘the Whitlams’ visit to Windsor ‘went well’, ministerial talks were ‘a good deal less satisfactory’. Whitlam was ’evasive or unyielding on virtually all the matters which we wished to raise with him and the didactic way in which he explained his own general ideas did not much appeal to Ministers. He showed so little sign of movement on matters of importance to us that it was useless to raise even secondary matters …. In retrospect Ministers were frankly irritated by his great reluctance even to discuss Five Power Defence …. Although he was a genial and easy guest, I fear that Ministers will conclude that he is not a man with whom it is profitable to do business. We shall have to keep trying with him and hope eventually to reach a useful working relationship but it will need time, and perhaps some painful knocks, before Mr. Whitlam learns that it is necessary to give as well as take in international affairs’. (UKNA: FCO 24/1614, letter, Hickman to D.P. Aiers, British High Commission, Canberra, I May 1973).
2 See Documents 440 and 441.
[UKNA: FCO 24/1614]