London, 12 June 1973
Australia Constitutional Issues
The Secretary of State has seen your revised brief and Lord Bridges’2 letter of 7 June. The Secretary of State has commented:–
‘I find it very difficult to accept the departmental view.3 The essence of a federation is a division of legislative powers and other rights between the centre and the States. If this is not done by consent it is tantamount to the UK Parliament modifying the federal structure which the Statute of Westminster explicitly said we would not do.
Political expediency may argue the course proposed, but surely the States have the right by law to continue with Appeals to the Privy Council and one part of the federal set up (for that is what Canberra is) cannot change this. Nor, I would have thought, do the Federal Court have jurisdiction over the State courts in this matter. Is our argument expediency or law?’
2. The Secretary of State has queried 3 aspects of the revised brief.
(i) In 1c ‘that he is not prepared to enter into independent discussions or negotiations with the States on a Government to Government basis’. He has asked why not when they have legal right to come to him.
(ii) In 1e that ‘whether particular matters are within the competence of the Commonwealth Government is a matter for the Australian Courts’.
(iii) In 2f that ‘it has been the long accepted view that the responsibility for the interpretation of the Constitution in its distribution of powers between States and Commonwealth rests with the High Court and not with the Privy Council.’
3. During the return from Tehran yesterday, the Secretary of State referred to his doubts about the brief in its first form. We did not of course have all the papers with us but suggested that this afternoon he could take the line that while one could not deny that the States had certain rights of appeal to the Privy Council and petition to The Queen to refer a matter to the Privy Council, he should nevertheless argue for all the reasons set out in the brief why it did not pay anyone, including the States, to press the partition of the sea-bed rights or to try any procedure other than through the Australian High Court on Privy Council Appeals, for the time being.
1 P.H. Grattan, Private Secretary to Douglas-Home; J.K. Hickman, South-West Pacific Department, Foreign and Commonwealth Office.
2 Lord Bridges, Private Secretary (Overseas Affairs) to Prime Minister, 1972–74.
3 A delegation of Australian state premiers visited London in June 1973 for discussions with the UK authorities on the abolition of appeals to the Privy Council (see Document 466). Briefing the Prime Minister for a meeting, the South-West Pacific Department of the Foreign and Commonwealth Office advised that the UK should not support referring constitutional questions to the Privy Council. It was better that the matter, ‘which in substance is one for political decision as to our future relations with Australia’, should be dealt with as such. Advice to the states should be to look to the Australian courts rather than the UK Government or the Privy Council for the protection of their constitutional rights. Heath disagreed with the advice, as it conflicted with what he had told Whitlam at his meeting on 24 April (see Document 462). The Foreign Secretary shared the Prime Minister’s view.
[UKNA: PREM 15/1301]