London, 12 June 1973
Confidential
1. Sir A Douglas-Home said that the last thing the British Government wanted to do was to become involved in a row between the Federal and State Governments, particularly in a way which could cause embarrassment to the Sovereign. We had formed no firm view on these problems and given no commitments. The fact was, indeed, that in 1973 the British Government could not resolve intra-Australian disputes. But he was glad to listen with an open mind to what the States had to say.
2. Sir Robert Askin handed over for the British Government’s consideration a copy of the Memorandum already given to the Prime Minister on 7 June setting out the States’ case on the issue of abolition of appeals to the Privy Council. He regretted the need for the State Premiers to visit London; but, as the Federal Government had presented its case in London about the abolition of appeals to the Privy Council without consulting the States, it might be felt that the absence of any representations by the States might be interpreted as acquiescence or lack of opposition to the Federal Government’s proposals.
3. Mr Everett then read a prepared statement dealing with (a) the States’ petitions on sea-bed rights and (b) the abolition of appeals to the Privy Council. His statement on seabed rights was in clear support of the Tasmanian and Queensland Petitions and Submissions, and to the joint Memorandum of New South Wales, Victoria, South Australia and Western Australia, which had all been recently lodged with the Office of the Privy Council. Mr Everett argued that the British Government should not act merely as a postbox for the petitions; that it was for the British Government to decide on the advice to be given to The Queen about referral of States’ petitions to the Privy Council; and that the decision should be made on legal and constitutional and not political grounds. The Privy Council was part of the judicial and constitutional structure of the States. Paragraphs 29–41 of the first submission in support of the petitions set out in detail why in the States’ opinion the Federal High Court was not the appropriate body to deal with sea-bed matters. The basic reason was that the High Court had no advisory powers, while litigation inter partes would result in a piecemeal situation and would take many years.
4. On the Privy Council issue Mr Everett spoke in support of the Memorandum which Sir Robert Askin had handed over. He recognised that the States could challenge the first part of the Privy Council Appeals Abolition Bill 1973 in the High Court. So far as the ‘request and consent’ provisions of the Bill were concerned he said that the British Government were in a fiduciary position, and that it would not be consistent therewith for the British Government to accede to the request to legislate in this matter. It was inappropriate for the Federal Government to seek to invoke the power of the British Government to deal with internal Australian matters. Ways existed within Australia of settling the issue. Reference should only be made to Westminster if it emerged that no solution by constitutional means could be reached in Australia. The Federal Government’s request with regard to the Privy Council appeals was symptomatic of their general approach to the Statute of Westminster; if it was accepted and acted upon by the United Kingdom it would create a precedent for similar requests in respect of other matters and this would jeopardize the balance between the Federation and the States provided for by the Constitution. The States were at all times ready to participate in discussions with the Federal Government on constitutional matters.
5. Sir A Douglas-Home enquired whether there was one territorial sea for Australia and, if so, whether the Federal Government exercised full rights over it. Mr Everett replied that historically the States had exercised rights within 3 miles. Only recently had this been challenged. In reply to Sir A Douglas-Home’s questions whether this could not lead to the establishment of different territorial limits between States, Mr Everett said that there had never been any case of the States disagreeing among themselves as to the delimitation of their offshore rights. Mr King acknowledged that the possibility Sir A Douglas-Home had raised did in theory exist but that no-one would suggest that the States had an independent right to establish their own territorial limits. The basic question, however, was the Commonwealth’s claim to exclusive rights.
6. Mr Hamer , who had to leave the meeting early, said that he wanted to express the full support and approbation of the State of Victoria for what his colleagues at the meeting had said so far. His hope was that the British Government would tell all the Australian authorities to go home and sort their problems out for themselves. Britain should only be asked to act with the consent of them all.
7. Sir Peter Rawlinson enquired whether the States had handed over all the papers the British Government needed to consider these issues. Mr Everett replied that it had been agreed at the meeting between States’ Solicitors-General and British officials on 8 June that one or two more detailed papers might usefully be provided by the States. These would be sent within the next few weeks.
8. Sir A Douglas-Home said that the British Government would consider carefully the material provided by the States. However, the views of the Federal Government would also need to be borne in mind.
9. Mr Bjelke-Petersen said that it was significant that all six States were represented at the meeting. They all agreed that the procedures laid down in the Constitution must be followed. In his view Mr Whitlam did not represent the views of the whole of Australia. In reply to a question from Sir A Douglas-Home , Mr Bjelke-Petersen said that he knew of no forthcoming occasion when the State premiers would be meeting Mr Whitlam.
10. Mr King said that South Australia was not concerned with the principle of abolition, which his and other States supported. Their concern was about the way the Federal Government had made a unilateral request to the British Government for abolition. He wanted to explain that there was no conflict between the States saying on the one hand that constitutional issues should be settled in Australia and on the other submitting petitions to the Privy Council. The reason was that the Privy Council was a Statute-based part of the Australian judicial structure and was the only body capable of resolving the sea-bed issues in a comprehensive way, whereas the High Court could only settle sea-bed issues on an ad hoc basis. Mr King also referred to statements made by Mr Whitlam about the possibility of a change in the status of the Governor General, so that he would act as Viceroy exercising all the powers of the Monarch in Australia. South Australia would support such a proposal, but Mr King urged that the States be consulted should the Federal Government make any formal proposal about the Governor General’s status. It was important to the States that nothing be done to alter the role of the Crown in relation to the States. Finally, Mr King said that he proposed to table in the South Australia Parliament on 19 June the documents which had been put to the British Government. Sir A Douglas-Home and Sir Peter Rawlinson confirmed that there would be no objection to this being done.
11. Mr McCaw said that although the States might agree in principle to the abolition of the right of appeal from State courts to the Privy Council, it did not follow that they also agree to the total repeal of Section 4 of the Judicial Committee Act 1833 which the Privy Council Appeals Abolition Bill proposed.
12. Mr Tonkin said that he wanted to go on record as supporting for Western Australia everything that Mr Everett had said.
13. There was some discussion about press statements in respect of the meeting. The statement attached was agreed.2
1 The meeting was held in the House of Commons. The UK was represented by Douglas-Home, Rawlinson, Royle and officials. The states were represented by Sir R. Askin (Premier, New South Wales), K.M. McCaw (Attorney-General, New South Wales), R.J. Hamer (Premier, Victoria), J. Bjelke-Petersen (Premier, Queensland), W.E. Knox (Attorney-General, Queensland), L.J. King (Attorney-General, South Australia), J. Tonkin (Premier, Western Australia) and M.G. Everett (Deputy Premier and Attorney-General, Tasmania).
2 Not published.
[UKNA: PREM 15/1301]