Attorney-General’s Department, Canberra, 16 May 1973
Visit of State Premiers to London—Sea-Bed and Other Matters
I refer to our discussion on 15 May concerning the steps being taken by the States to petition Her Majesty to refer the question of sea-bed rights to the Privy Council.
2. Since our discussion, Mr Griffith of your Department has drawn my attention to telegram 2703 of 19 February, 1973, from London, which reports a discussion between the Australian High Commissioner and the Deputy Under-Secretary at the Foreign and Commonwealth Office. Mr Griffith suggested, and I agree with him, that the discussion referred to in the telegram might be used as the basis for the Australian government raising the present situation with the United Kingdom Authorities. I think that we both felt yesterday that the Australian Government should be in touch with the United Kingdom Government as soon as possible.
3. In my talk with Mr Griffith this morning I suggested that it would be desirable to make the additional point to the United Kingdom Authorities that a Bill had now been introduced in the Australian Parliament that, when passed, would provide the States with the opportunity to challenge the constitutional validity of the legislation in the High Court of Australia. The legislation will raise all the constitutional issues that the States appear to have it in mind to request Her Majesty to refer to the Privy Council. In these circumstances, it would be entirely inappropriate for the Petition to be referred for the opinion of the Privy Council. The message to the United Kingdom Authorities should make it clear that if the constitutional issues are raised in the High Court the decision of the High Court will not be appealable to the Privy Council. (See the Privy Council (Limitation of Appeals) Act 1968.)
4. I am sending a copy of this letter to Sir Keith Waller.
5. I shall be glad to assist with the preparation of a telegram or other communication to London.
6. I would like to get a message to the Attorney-General at The Hague as soon as possible but would prefer to wait until the nature and timing of the next step from Canberra is known.
[NAA: A432, 1973/3262 PART I]