Cowes, 8 May 19731
Confidential
I had a talk for two hours with Mr Whitlam, beginning at 5 o’clock on Tuesday, 24 April and finishing just after 7 pm when he went off to change before returning for dinner soon after 8 pm. No-one else was present at the talk.
Mr Whitlam throughout was relaxed and friendly. In our preliminary exchanges I said how glad I was to see him again and we much appreciated that he should come to London on a visit so soon after becoming Prime Minister of Australia. We had often met for a talk when we had both been in opposition and when he, as Leader of the Australian Opposition, had visited London since I had become Prime Minister. It was very useful now to have this further opportunity of a general discussion with him.
Mr Whitlam replied by expressing his appreciation of all that was being done for him during his visit. (This he later repeated to me both during dinner at No. 10 and as we were leaving Westminster Abbey for the ANZAC Day Service at noon the next day, Wednesday, 25 April. He said that we had gone far further than was required by the ordinary courtesies of entertaining and looking after a visiting Commonwealth Prime Minister.) He recognised the timing of his visit was inconvenient for everybody in London but unfortunately it was unavoidable if he were to come at this time of the year at all. He went on to emphasise how much he and his wife had enjoyed staying at Windsor; that he had a very worthwhile talk with The Queen, and that he had particularly liked being shown the pictures and other treasures in the Castle. He mentioned that he was sorry that he had not felt able to accept either the Foreign Secretary’s or my own invitation for Easter weekend but he felt in need of a rest. Moreover as it was the first time he and his family had been together for ten years they felt they would like to spend it quietly in London, celebrating their 31st wedding anniversary on Easter Sunday. He went on to say that on Easter Monday afternoon they had just gone off for a private tour which included Kew, Strawberry Hill and the Pope’s Grotto.2 Alas 1 was not able to add to his funds of information about the two latter as I am not well acquainted with them.
Getting down to business, Mr Whitlam said that the main subject that he wanted to discuss with me was the question of appeals from the Australian states to the Privy Council. In fact this was really the only reason why he had come on this visit to London. There were, of course, other related problems which he would mention to me but before doing so he would like to give me an account of his conversation with The Queen at Windsor and the conclusions they had reached.
First, as to Her Majesty’s Style and Title in Australia, The Queen had agreed to delete specific mention of the United Kingdom. He had also asked Her to delete Defender of the Faith from Her Style and Title but The Queen expressed objection to this and he had therefore acquiesced in the retention of these words.3
Secondly, he had agreed with Her Majesty that She would sign the formal appointment of Australian Ambassadors and High Commissioners to capitals but all the preceding work would be carried out by Canberra with the Governor General.
Thirdly, as far as substituting the title Ambassador for High Commissioner was concerned, he recognised that this was something that had wider Commonwealth implications which would need further discussions with the member countries. Mr Whitlam gave no indication of any intention to raise this formally at the Commonwealth Conference but he appeared to have no clear view as to how he might proceed in this matter.
I thanked Mr Whitlam for his information and replied that as far as matters affecting The Queen and Australia were concerned, these were entirely a matter for the Australian government on which it would be quite inappropriate for me to express any views. As far as the title of High Commissioner or Ambassador was concerned, this was not a matter on which we would take any initiative but we would naturally be interested to hear the outcome of any discussions he might have with other members of the Commonwealth.
Mr Whitlam proceeded to add that since his Government came into office they had taken a considerable number of steps to modernise Australian procedures and the Australian approach to similar matters; for example they had changed the introduction to the normal bill introduced into the Australian Parliament so that it was now quite simple and easily understood, referring no longer to the Commonwealth of Australia but just to Australia. He appeared to attach considerable importance to these cosmetics, remarking that others might find them trivial, but they were in fact an important implication on Australia’s rise to mature nationhood.
Mr Whitlam then expressed his pleasure that The Queen was going to Australia in the autumn for the Opening of the Sydney Opera House and would visit Australia again in 1974 after the Commonwealth Games at Christchurch, New Zealand.
The Australian Prime Minister then turned to the main subject of the discussion, namely the appeals from Australian states to the Privy Council. He said that he wanted to describe his approach to these matters which was that it was humiliating for an independent country of Australia’s importance to have the final appeal for any part of its judicial system to a court in another country, the members of which were appointed by another Government. It was a relic of colonialism and Australia’s early history and his Government believed that together with other similar anachronisms this right of appeal should be abolished. The question was how it should be done.
I replied that Commonwealth countries or States which had maintained the right of appeal to the Privy Council had done so because they believed it was in their interests. The reputation of the Judicial Committee of the Privy Council stood as high as that of any court in the world. Moreover it also contained a number of Australian members who were appointed after consultation with the Australian authorities. This was a system which had proved acceptable in the past but if those concerned in Australia wished to change it, it was entirely open to them to do so. Her Majesty’s Government would not dream of standing in the way provided that the change was brought about constitutionally. I must emphasise to him that I was determined that Her Majesty’s Government at Westminster would not in any way become involved in an entirely Australian dispute between States which still retained the right of appeal to the Privy Council and Canberra. Moreover I must emphasise to him that the states concerned had Agents General permanently en poste in London, many of whom were very active and in close touch with Members of Parliament on all sides of the House, and they were well able to make the views of the States known to public opinion as well as at Westminster and in Whitehall. We already had evidence of this in our discussions on British immigration policy and I had no doubt that if there were to be a dispute between the States and Canberra over matters governed by United Kingdom legislation we should see the same sort of activities again. I added that I had, of course, already mentioned this to him in our early morning telephone conversation earlier in the year and also in the message which I had sent after. But it was incumbent upon me to make the position clear to him so that there could be no possible misunderstanding about it.
Mr Whitlam said that he understood this. His first proposal to me had been to make all Australian judges Privy Councillors so that the Judicial Committee of the Privy Council would become an all-Australian Court meeting in Australia until the necessary legislative measures to abolish the right of appeal had been taken but that I had, of course, rejected this. I replied that I had done so because of a number of reasons. First of all, as I pointed out, there was already a sufficient number of judges in Australia able to form a quorum of the Privy Council. Secondly his proposal for the new names was linked to the question of a privy councillorship for a retired judge whom he was not proposing to use in any case; and thirdly, as he had already announced that it was his Government’s intention to abolish the right of appeal to the Privy Council, I felt I would have been using membership of the Privy Council purely as a stop-gap while Canberra and Westminster proceeded to abolish the remaining right of appeal. To this Mr Whitlam replied that it would in fact have been a sham and he quite understood that I was not prepared to make myself vulnerable to attack in Britain on these grounds.
Mr Whitlam then went on to say what his Government now proposed to do was to introduce a bill into the Parliament of the Commonwealth of Australia to abolish the remaining right of appeal from the States to the Judicial Committee of the Privy Council. He did not think there would be any trouble about this in the Australian Parliament. The right of appeal to the Privy Council had already gone for the Commonwealth as a whole. This approach was supported by both major parties in Parliament. Some of the States might object, though he could not be sure that they would, and there would be time for them to challenge the resultant act of the Australian Parliament. If the act were to be challenged, they would have to await the decision of the Australian High Court. If the challenge were rejected, the Australian Government would then expect the British Government to legislate under the ‘request and consent’ provision of the Statute of Westminster.
I asked Mr Whitlam whether he thought that the States would challenge the Act in an Australian High Court.
In answer to my query, Mr. Whitlam confirmed that in the case of an Australian state’s challenge to the act being rejected by the Australian High Court, no right of appeal would lie from the High Court to the Privy Council. I then asked him whether the State would not have a direct right of appeal to the Privy Council, asking for a reaffirmation of the State’s rights and a declaration that these rights would not in any way be affected by the Canberra legislation. Mr Whitlam replied that in his view the State would have the opportunity of such a direct appeal to the Privy Council, requesting a reaffirmation of its rights. Naturally he was not prepared to offer any opinion on the outcome of such a request.
I then set out the British Government’s view on these matters.
I told Mr Whitlam that I wanted to emphasise once again that we had absolutely no desire to retain any of the legislative connexions to which Australia took exception. We had long ago finished with every aspect of colonialism in our relations with other countries. There only remained the few island dependencies which at present were determined not to accept independence and Rhodesia. The latter presented us with an immense problem and it was to our deep regret that we were not able to liquidate our remaining colonial obligations there.
As far as Australia was concerned, the clearest solution would, of course, be for States which still retained the right of appeal to the Privy Council to request the British Government to legislate at Westminster to repeal this right. Such a procedure could not possibly cause any constitutional difficulty. Mr Whitlam commented that he did not like the States coming direct to the British Government in any case. (He later remarked that there were other matters in which the States came direct to the British Government, for example, in the appointment of Governors and their Agents General in London and in respect of certain remaining Westminster legislation. He wished that all of this should be done through Canberra but he recognised that these were subsidiary matters which would also require sorting out.) I went on to say that the second clearest solution would be for the States to ask the Australian Government for the repeal of their right of appeal to the Privy Council and this could be handled under the ‘request and consent’ provision of the Statute of Westminster. Mr Whitlam replied that such a procedure would be more acceptable to him but he doubted whether the States concerned would be prepared to make such a request because the probability was that they would wish to keep the right of appeal.
In that case, I replied, we came to the third possible solution which was the one he had himself outlined. This obviously contained the seeds of constitutional conflict and I repeated that the British Government would wish to hold itself above such disputes.
Mr Whitlam stated that he thought the Australian Government would wish to act along the lines he had indicated. When reporting to the Australian Parliament on his return, he would use the same terms as he had used to me. He would not say that there was agreement between the British and Australian Governments on the question of procedure or on what the British Government would do in particular circumstances. He would announce the Australian Government’s intentions and say that in certain circumstances they would expect the British Government to take action at Westminster. But meanwhile he thought that it would indeed be useful if officials would carry on discussions about the detailed procedures to be followed. His Solicitor General, who was not a politician, but a legal adviser, was at present in London with him and if I was agreeable he would like to discuss with his opposite number the procedural questions involved.
I said that I would be delighted to arrange for this to take place. On our side the Attorney General had been giving close and detailed study to the implications of the course of action proposed and I would gladly ask him to enter into talks with the Australian Solicitor General in the next 48 hours.
I then asked Mr Whitlam which other of the remaining ‘relics of colonialism’ he wished to be abolished. The legislative burden at Westminster was very heavy and it would greatly ease our problem of finding legislative time to deal with these matters affecting Australia if we could embody all of them in one bill. I hoped therefore that we could have the whole field examined and we could take all the necessary action at once. I repeated that the British Government had no desire whatever to retain any of this legislation.
Mr Whitlam replied that there were Sections 735 and 736 of the Merchant Shipping Act 1894 which limited the powers of the Australian States to legislate in respect of merchant shipping. This was no longer acceptable. Under present conditions shipping between the States can be covered by Canberra legislation but shipping along a State coast cannot. A few years ago a ship foundered off the Queensland coast with loss of life and it was then found that the compensation payable was limited by the United Kingdom legislation.4 This was very unsatisfactory and he wanted the limitations of the 1894 Merchant Shipping Act removed. He did not think this was controversial with the States and for this reason was not prepared to adopt the procedure agreed between the British Government and the previous Australian Administration. The Commonwealth Government would legislate at Canberra and act under the ‘request and consent’ procedure of the Statute at Westminster.
I then asked Mr Whitlam if there were any further matters to which, after some thought, he replied—no, he did not think there were.
I then asked him about Section 2 of the Colonial Laws Validity Act to which he replied that he did not wish to have this repealed, certainly not before they had been able to consider legislation in Canberra to take its place. If the United Kingdom Parliament were to repeal Section 2 of the Colonial Laws Validity Act, it would only increase the actual powers of the States and this he strongly opposed. It was only when his Government had been able to take the powers away from the States that he would wish Section 2 of the Colonial Laws Validity Act to be repealed in respect of the States. I refrained from commenting on this desire to retain legislation which was not only colonial in aspect but colonial in title.
As Mr Whitlam had nothing more to say on these matters, I inquired whether he had been able to have all the talks necessary with my colleagues and whether he had found them useful. To both questions he answered—yes. In particular he had been able to discuss the question of French nuclear tests in the Pacific with the Foreign Secretary. He had drawn to his attention the resolution passed at the South Pacific Forum which he had just been attending at which the five British dependencies had been represented. All had subscribed to the resolution protesting against the French tests and feelings were running very high. Of course, he knew about our position in relation to the French but the Foreign Secretary had agreed to forward the representations from the South Pacific Forum to Paris. As far as Australia was concerned, his Attorney General had already been to Paris and now they were going to take the matter to the International Court. He realised full well that the French would take absolutely no notice. None of these things would do any good. But feelings were running high, and it was a political question. He added that his Government had also made representations in Peking about their tests but they were much further away and did not raise quite the same emotional issues.
I then told the Australian Prime Minister that if there were no matters he wished to discuss with me, I would like to raise one matter with him to which we attached particular importance, namely the question of security of intelligence. I have recorded this part of the conversation separately.
At the end of our meeting we agreed that all that would be said to the press would be that we had discussed the constitutional questions arising out of the present relationship between Australia and Britain and that we had agreed that the British Attorney General and the Australian Solicitor General should together examine these questions in more detail in London immediately following our meeting.
1 The meeting was held in London but Heath dictated this record two weeks later at Cowes, a yachting centre on the Isle of Wight off the south coast of England.
2 The Royal Botanical Gardens are at Kew in West London. Close by is Strawberry Hill, an affluent area of the borough of Richmond upon Thames near Twickenham. Pope’s Grotto, in Twickenham, takes its name from a villa and grotto designed by Alexander Pope (1688–1744), poet, satirist, letter writer, and designer of gardens.
3 Having been shown a copy of Heath’s record, Charteris pointed out that in her discussion with Whitlam (see Documents 456–58), the Queen had agreed to the deletion of ‘Defender of the Faith’ from her Style and Title in Australia but had insisted on retaining, Whitlam agreeing, ‘By the Grace of God’ (UKNA: FCO 24/1614, Charteris to Bridges, 9 May 1973).
4 On this compare Twomey, The chameleon crown , p. 15.
[UKNA: PREM 15/1299]