Canberra, 20 June 1973
I was pleased to receive your letter of 6 June regarding the abolition of appeals to the Privy Council and the Tasmanian and Queensland Petitions on certain Australian sea-bed issues. Thank you for advising me of the approaches that were being made in London by State Premiers and Attorneys-General and of the procedures that you were adopting.
The States have now completed their discussions in London.1 The views of my Government on the two matters in question will, I think, be well in your mind through the discussions we had in April2 from the messages that have passed between us and, more recently, from the discussions that our Solicitor-General has had in London with your Attorney-General and with British officials. I have nevertheless thought that it would be generally useful if I were to be in touch with you again and to inform you of the position in Australia as it stands at present.
It has been most helpful to have the views of your officers on the proposed British legislation concerning abolition of appeals from Australia to the Privy Council. Attention has been drawn to the proposed repeal of section 4 of the Judicial Committee Act 1833. This had not been mentioned in the earlier discussions but the intention of Tasmania and Queensland to lodge Petitions had not then been announced. When the intention of the States came to our notice we realized that the repeal should deal both with the matter of appeals from Australian Courts and with Australian Petitions under section 4 of the Act of 1833. The Canadian repealing legislation of 1949 dealt with both matters. Australia should attain the same position.
The move that my Government has made for the total abolition of appeals to the Privy Council does not involve new policy. The previous Australian Government took a first, and very substantial, step in that direction in 1968. Abolition of appeals to the Privy Council has been part of the policy of my Party since 1908. As l pointed out to your High Commissioner in December, I reiterated it in my Policy Speech for the last elections. As appears from the Bill introduced in our Parliament it is the view of my Government that it and the Australian Parliament are constitutionally competent to request and consent to the enactment of British legislation.
At the request of several of the States, the whole matter is now to come up for discussion between the Premiers and myself at our annual Conference in Canberra next week. I shall let you know the outcome.3
With regard to the Petitions, you will know that the question of sea-bed rights had been a matter of controversy in all countries having a Federal system of government. In Australia the controversy has persisted for fully ten years. With the object of having the constitutional position resolved by the High Court of Australia the previous Australian Government introduced a Bill in 1970. The Bill was supported by my Party; but was not proceeded with by the then Government—this was for local political reasons. The constitutional issues involve the respective powers of the Commonwealth and the States over the sea-bed and such questions are reserved by the Constitution (subsequent in time to the Act of 1833) for the final decision of the High Court.
The continuing policy of my Government is to have these purely Australian constitutional issues determined by our High Court. A further Bill has been introduced to provide opportunity for that to be done. The Petitions should not, in the view of my Government, be referred to the Privy Council.
There can be no doubt that the Petitions raise matters of concern only to Australia. On analysis they will be found to raise questions as to the extent and means of delimiting Australian national boundaries and as to the respective rights of the National and State Governments to the sea-bed off our coast. I am sure you will understand me when I say that these are not matters which are the concern of the United Kingdom Government.
As I indicated in my letter of 24 May, it is my Government’s view that Her Majesty, in exercising her discretion under section 4 of the Act of 1833 in relation to these Petitions, should act on the advice of Her Australian Ministers. My Government’s view rests on the basic constitutional principle that it is the right of each self-governing dominion to advise the Crown in all matters relating to its own affairs. This was recognised in the principles declared by the Imperial Conference of 1926 and applies equally to the present case.
I believe that Australian and British Ministers will share a common view as to the proper advice to be given to Her Majesty in regard to the Petitions. It is not only constitutionally correct, but makes such abundant good sense, to leave this question of Australian constitutional law to be determined by the High Court of Australia.
I look forward to hearing from you soon regarding the Petitions. I shall send a further message as soon as possible on the other questions of abolishing appeals to the Privy Council.
1 See Documents 464–67.
2 See Documents 460–62.
3 At a Premiers’ Conference in June 1973, Whitlam offered to abandon his Bill if all states agreed to a joint approach to the UK Government for legislation abolishing appeals to the Privy Council. Most states preferred an alternative approach whereby a Statute of Westminster for the states would be enacted giving them full legislative power to repeal British laws applying to them. In this way each state could itself legislate to abolish Privy Council appeals from its courts. (Twomey, The chameleon crown , pp. 137–38.)
[UKNA: PREM 15/1300]