Canberra, 1 May 1973
The Queen and the Privy Council
I shall later be seeking leave to make a brief, general statement about the visit overseas from which I returned yesterday. I first wish to make a statement on certain legal and constitutional matters arising from my discussions in Britain.
I discussed with the Queen,1 by an arrangement made in advance, her Australian Style and Titles and new arrangements for the accreditation of Heads of Mission by Australia and to Australia.
The Queen’s Australian Style and Titles were last amended in 1953 when the Parliament was invited by the Prime Minister of that day to approve, and did approve, that the Royal Style and Titles should be:
‘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’.
That Bill in the Australian Parliament followed a discussion at a meeting in London in December 1952 on the Royal Style and Titles, having regard to the constitutional relationship then existing between the Prime Ministers and other representatives of Commonwealth countries.
The Prime Ministers and the Heads of Delegations then agreed that it would be appropriate for each member country to have in its own Style and Titles a common element but otherwise to use for its own purposes the form of Titles which would suit its own particular circumstances. They agreed that the common element should consist of a reference to Her Majesty’s other realms and territories and her Title as Head of the Commonwealth.
The Titles which the Australian Parliament approved in 1953 incorporated that common element and proclaimed its own particular territorial and other references.
Other Commonwealth countries adopted their own formulae. In the result, a variety of formulations emerged.
This, as the then Prime Minister said in connection with the 1953 Bill, is not to be seen as some form of oddity or disunity. It simply reflects the fact that—the Commonwealth comprises a great variety of peoples and forms of Government.
My Government feels however that the 1953 formulation now requires amendment. It has concerned me and my Government that it is not now sufficiently distinctively Australian. It still contains the special references, and in fact gives first place, to the Queen’s title as Queen of the United Kingdom of Great Britain and Northern Ireland. Further it is our view that one of the ancient references—‘ Defender of the Faith’ has no historical or constitutional relevance in Australia.
I have spoken about these matters to the Queen. She very much welcomes a distinctively Australian Style and Titles. Accordingly I am able to announce that I have her full concurrence in an amendment, if the Australian Parliament approves, which would result in dropping the specific reference to the United Kingdom and the reference ‘Defender of the Faith’.
The new formulation will be:
’Elizabeth the Second, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’.
It retains in full, as Honourable Members will note, the common element agreed upon in 1952.
My Government will introduce a Bill directed to this new formulation as soon as possible. As with the 1953 Bill, the proposed Bill will, on being passed by the Parliament, be reserved for Her Majesty’s pleasure.
In the matter of diplomatic accreditation, my discussions with the Queen have had an equally happy outcome.
It has been the practice in the appointment of Australian Ambassadors to other countries, and also in the appointment of High Commissioners to countries not within the Queen’s realms, that is to say, Republican countries within the Commonwealth, for the Australian Government to make its proposals to the Governor-General and to ask the Governor-General to seek the Queen’s approval.
The same situation has operated in relation to the accreditation of Heads of Mission to Australia. The practice has been for the government concerned to put forward informally the name of its proposed Ambassador and to seek agreement before proceeding to formal accreditation. Agreement has, up to now, been forthcoming only after the approval of the Queen on a recommendation made through the Governor-General.
From now on, with the Queen’s full approval, all these matters will become matters for approval by the Governor-General on the Queen’s behalf—the Queen of course being kept informed of appointments of Australian Heads of Mission by the Governor-General, and of the recognition of Ambassadors or other diplomatic representatives appointed to represent the interests of foreign states in Australia.
These new procedures will provide a new and highly practical simplicity in accreditation questions.
However, the Letters of Credence which Australian Heads of Mission present to the Head of State of the country to which they are being accredited, and also the Letters of Recall of their predecessors, will continue to be signed by Her Majesty as the Australian Head of State. Her role in this regard will, however, be made much clearer by the proposed amendment of the Royal Style and Titles, whereby the only country named is Australia.
Similarly, Letters of Credence and Letters of Recall from foreign countries, being communications between Heads of State, will continue to be addressed to Her Majesty though they will, of course, be accepted by the Governor-General on the Queen’s behalf.
These arrangements are all the more important in view of the very much higher number of accreditations now compared with say twenty years ago. In 1953 for instance, Australia had 28 Ambassadors and High Commissioners abroad and there were 29 Ambassadors and High Commissioners accredited here. In 1972 the corresponding figures were 74 Australian Ambassadors and High Commissioners abroad and 55 Heads of Mission here.
To illustrate the position in another way in the year 1953 the actual number of appointments of Australian Heads of Mission requiring the Queen’s approval was 3. In the latest full year 1972 the number was 30.
The next matter is the matter of abolition of appeals to the Privy Council.
Last Tuesday Mr Heath and I had a valuable exchange of views about this matter.2 I had earlier discussed it with the Lord Chancellor (Lord Hailsham), the Secretary of State for Foreign and Commonwealth Affairs (Sir Alec Douglas-Home) and the United Kingdom Attorney-General (Sir Peter Rawlinson, QC).3
The outcome of the discussions in London is that the Australian Government will introduce a Bill as soon as possible requesting and consenting to the enactment of United Kingdom legislation abolishing appeals to the Privy Council in the remaining instances in which appeals still lie from Australian Courts. The Bill will draw upon all powers available to the Australian Parliament under the Statute of Westminster and under the Constitution.
The purpose of the Australian Government is to make the High Court of Australia the final court of appeal for Australia in all matters. That is an entirely proper objective. It is anomalous and archaic for Australian citizens to litigate their differences in another country before Judges appointed by the Government of that other country.
This is not the first time that the abolition of appeals to the Privy Council has been raised in the Australian Parliament.
I have myself raised the matter on several occasions. Eight years ago, when Sir Robert Menzies was Prime Minister, I initiated a debate on it. Five years ago the Parliament passed the Privy Council (Limitation of Appeals) Act. In introducing the Bill for that Act the then Attorney General said that the Parliament was being asked to take an historic first step towards the establishment of the High Court as the final court of appeal for Australia. He said that the Bill was a tribute to, and that it would still further enhance, the standing and prestige of the High Court of Australia.
With all those sentiments, the Australian Labor Party, at the time, thoroughly agreed. The discussions that I had in London last week and the action that I am now outlining to the House are a logical, further and final step in the process of making the High Court of Australia Australia’s final appeal court.
The Privy Council (Limitation of Appeals) Act 1968 abolished appeals from the High Court to the Privy Council in all constitutional, Federal and Territory matters. As a result of the Act of 1968 appeals now lie to the Privy Council only in respect of decisions of the High Court given on appeal from a State Supreme Court in a State matter and in respect of decisions of State Supreme Courts in State matters. This leaves aside questions as to the limits inter se of the Constitutional powers of the Commonwealth and the States. On such questions an appeal may be brought to the Privy Council only if the High Court itself certifies that the question is one which ought to be determined by the Privy Council. No certificate has been given by the High Court since 1912.
In 1968 the Australian Labor Party moved an amendment, which was not accepted, that would have made final the decision of the High Court given on appeal from a State Supreme Court in a State matter. The legislation I am now foreshadowing will make provision to that end.
There remain then for attention appeals from State Supreme Courts in State matters. It seems that some States support abolition and that others do not. It would be incongruous in the extreme if for some States the High Court were to be the final court of appeal in State matters and if for other States it were to be the Privy Council. There would still be the exceptionally expensive and lengthy process of successive appeals to the Full Court or Court of Appeal of a State, the High Court of Australia and the Judicial Committee of the British Privy Council. The situation plainly requires action at the national level. I accordingly took the matter up with the United Kingdom Prime Minister.
The United Kingdom takes the view that the question whether appeals should be brought to the Privy Council from the courts of a Commonwealth country is essentially a question for the Commonwealth country concerned. An Australian initiative is therefore required. I think it correct to say that the United Kingdom would wish moreover that whatever can be done in and by Australia should be done in and by Australia herself.
One way of proceeding is for the Australian Government and Parliament to request and consent to the enactment of United Kingdom legislation. There will then be opportunity for the validity of the legislation of the Australian Parliament to be challenged. If there is no challenge, or if in the event of challenge the validity of the legislation is upheld; the Australian Government would expect the United Kingdom Government to introduce into the United Kingdom Parliament the legislation requested by the Australian Government and Parliament.
The result would then be that the High Court of Australia would be, as it should be, the final court of appeal for Australia in all matters.
I emphasised that these matters represent no disruptive departure from the past. In the great tradition of British constitutional monarchy, we march still from precedent to precedent—albeit with a firmer, more self-confident, more purposeful tread than ever before.
1 See Documents 456–59.
2 See Document 462.
3 See Document 460.
[NAA: Al209, 1973/6398]