London, 16 July 1973
Confidential
Australia: States’ Petitions on Offshore Rights
Background
1. The division of sea-bed mining rights between the Australian Commonwealth and the Australian States has been a controversial issue in Australia for some years. A Sea and Submerged Lands Bill 1973, which would vest in the Commonwealth Government control over the sea-bed and over mineral deposits contained therein, was approved by the House of Representatives in May and will be considered by the Senate after Parliament reassembles in August. On 31 May, the States of Tasmania and Queensland delivered petitions to the Clerk to the Privy Council seeking a reference by The Queen to the Privy Council under Section 4 of the Judicial Committee Act 1833 of certain questions concerning the extent of those States’ jurisdiction over the sea-bed adjacent to their coast. This was supported by other States. The petitions have been referred to me for advice at the request of Buckingham Palace.
2. The principal arguments put forward by the States in favour of their petitions being referred to the Judicial Committee, and by the Commonwealth Government against such a reference, are summarised at Annex A. The States have promised to send further documentation in support of their case which is expected soon.
3. There are two questions for decision:
(a) whether it is appropriate for advice on this matter to be tendered to Her Majesty by UK Ministers, and if so
(b) what the advice should be.
On (a), the Commonwealth Government maintains that since the petitions raise matters of concern only to Australia, The Queen should act only on the advice of Her Australian Ministers. The Law Officers’ advice is that British Ministers have the right to advise whether the petitions should be referred to the Privy Council, although Australian Commonwealth Ministers should have a concurrent right to do so. Even if there were no legal duty to do so, it would be wrong for British Ministers to refuse to give The Queen any advice since the matter has been referred to me.
4. We therefore have to consider (b). The Law Officers, in an Opinion of 12 June, have set out the constitutional and legal arguments against advising The Queen to refer the petitions to the Privy Council (paragraphs 1 to 5 of Annex B). Many of these arguments also have great practical force. Moreover, to refer the petitions to the Privy Council without the consent of the Commonwealth Government, would not only be pointless but would also bring the British Government into a serious constitutional conflict with the Australian Commonwealth Government and put The Queen into an invidious position of receiving conflicting advice. Additionally, with the Law of the Sea Conference pending, it might be against Britain’s direct interests to invite the Privy Council to express views on such subjects as territorial waters and sea-bed rights.
5. The States have suggested that the questions whether or not the advice of the Commonwealth Government should be sought, and indeed whether the petitions should be referred to the Privy Council at all, might themselves be the subject of a prior reference to a Mixed Committee of the Privy Council (i.e. of judges and laymen). This would not necessarily resolve the conflict of view between the States and the Commonwealth. The Commonwealth Government would be bound to oppose the involvement of a Mixed Committee; the Committee’s conclusion might not be one which we or the Commonwealth would welcome; and whatever the result the British Government would still have to decide whether or not to accept it.
Recommendation
6. I recommend that I should advise The Queen against a reference of the two petitions to the Privy Council unless the further material to be presented by the States contains compelling reasons to the contrary. I also recommend that before this is done, the Commonwealth Government should be told that in our opinion the British Government is entitled to advise The Queen on the petitions, and what that advice will be. If the Commonwealth Government objects in principle to any advice at all being tendered to The Queen by the British Government it could then be suggested that both Governments might concurrently tender similar advice to Her Majesty. The timing of this communication to the Commonwealth Government will need further consideration. Following the submission of advice to Her Majesty in due course I will send messages to the States’ Governors informing them of the result.
7. In the absence of any comment by 24 July, I will assume that the above recommendations are agreed.
ANNEX A
ARGUMENTATION OF THE STATES’ AND COMMONWEALTH GOVERNMENTS
States Governments
1. The territorial limits of a State are not a matter governed by any Commonwealth laws and are not, therefore, proper for Commonwealth legislation.
2. The Judicial Committee is the only body competent to advise on the questions raised in the petitions since the Australian High Court lacks advisory jurisdiction.
3. Litigation in the High Court against the Commonwealth Seas and Submerged Lands Bill 1973 would result in a piecemeal ruling (‘serial litigation’) rather than overall, comprehensive advice.
4. There is a wider question at issue: the whole constitutional relationship of the Commonwealth and the States.
Commonwealth Government
1. It is the right of each self-governing Dominion to advise the Crown in all matters relating to its own affairs; appeals and references from Australia to the Privy Council are archaic and objectionable.
2. The Petitions raise questions directly affecting the rights of the Commonwealth.
3. The proper forum for the deliberation of the questions raised in the petitions is the High Court of Australia. The Seas and Submerged Lands Bill 1973 will provide the opportunity for litigation on seabed questions.
4. There should not be two streams of authority, viz. the High Court and the Judicial Committee.
ANNEX B
AUSTRALIAN CONSTITUTIONAL ISSUES:
OPINION OF THE LAW OFFICERS OF THE CROWN (12 JUNE 1973)
1. The Sea-bed Issue
We have been asked to advise on the legal considerations affecting the advice which United Kingdom Ministers should tender to the Crown on the petitions of Tasmania and Queensland. These petitions, by Tasmania and Queensland respectively, seek reference by Her Majesty, under Section 4 of the Judicial Committee Act 1833, of certain questions relating to the powers of the States to grant mining leases of areas on the sea-bed within the waters off their shores. In 1971 the previous Commonwealth administration introduced legislation which would have had the effect of greatly restricting the powers of the States over the sea-bed. This legislation was not passed into law, but the present administration has introduced similar legislation which has been approved by the House of Representatives, but which has not as yet been passed by the Senate. But the Commonwealth is therefore asserting that certain rights on the sea-bed fall within the Commonwealth sphere, and that there is a Commonwealth interest in the matters proposed to be referred to the Judicial Committee. They also maintain that Commonwealth ministers, and not United Kingdom ministers, are constitutionally entitled to advise the Crown with regard to the exercise of the powers under Section 3 of the Act of 1833 in this case.
2. The Commonwealth Government has submitted that the Commonwealth Seas and Submerged Lands Bill 1973 when passed, will provide opportunity for all relevant sea-bed questions to be determined by the High Court of Australia whose decision would be final and conclusive. Further, if the States proceed with the petition they intend to ask the Governor-General to convey to Her Majesty the advice of Her Australian ministers that Her Majesty should not refer to the Judicial Committee the questions raised by the Petition.
3. In discussions, between the Attorney-General and certain of the Australian State Law Officers it was admitted that the High Court of Australia could determine all the relevant seabed issues between the Commonwealth and the States arising from Commonwealth legislation. This was confirmed in discussions with all the State Solicitors-General.
4. The Australian State Law Officers have also admitted that the opinion of the Privy Council would not be binding upon the Australian Courts. They seek the Opinion on the grounds that it would remove uncertainty. They argue that, although not binding, the Opinion would be of strong persuasive effect in Australia and would be likely to lead to the expeditious resolution of issues between the Commonwealth and the States; and that these issues could be determined by the Australian Courts only if and when Commonwealth legislation is enacted, and then piecemeal and over a long period of time.
5. In our opinion there are substantial arguments of a constitutional and legal character against advising the Crown to refer these petitions to the Privy Council.
(a) Embarrassment to the Sovereign
The Commonwealth Ministers will advise Her Majesty against the reference of the petition. We doubt whether the claim by the Commonwealth Ministers to give advice on the matter to the exclusion of United Kingdom Ministers is correct. However, the Commonwealth interest in the subject matter of the petitions is so substantial that the Sovereign would be gravely embarrassed if conflicting advice was given to her by Ministers of the two Governments.
(b) The existence of a forum in Australia
A decision of the High Court of Australia on issues in dispute between the Commonwealth and the States on the sea-bed would be binding and conclusive. There would be no appeal to the Judicial Committee from such a decision, because the High Court of Australia does not, in practice, grant leave to appeal to the Judicial Committee on inter se questions. There exists therefore in Australia a forum in which the sea-bed issues can be definitively resolved, and it is in this forum that Commonwealth/State disputes have hitherto been resolved in Australia. Such questions have never hitherto been the subject of a special reference under Section 4 of the Act of 1833.
(c) The ineffectiveness of the Privy Council’s Opinion
Although it may be expected that the Australian courts would show considerable respect to the opinion of the Privy Council, the advice would not be binding upon the Australian High Court. Moreover, in view of its attitude, it can be assumed that the Commonwealth Government would not participate in the proceedings or agreement on any reference before the Privy Council. Accordingly the advice would be of much diminished value as guidance to Governments and Parliaments in Australia.
(d) Delay
Since an Opinion is advisory only, the resolution of the issues would not be expedited by a reference. The immediate advantage to the Australian States of a favourable Opinion by the Judicial Committee would primarily be political.
6. The Abolition of the Privy Council’s Appeals
We have been asked to advise further on this issue in the light of the developments which have occurred since the Attorney-General’s advice of 26 January 1973.
7. The Bill which the Commonwealth Government has now introduced, namely The Privy Council Appeals Abolition Act 1973, seeks to achieve the abolition of the appeals by two alternative methods. The first is by an exercise of Commonwealth legislative powers, i.e. by directly repealing the United Kingdom Acts, (the Judicial Committee Acts and other statutes) providing for the appeals. The second is by requesting and consenting to the enactment of legislation by Parliament at Westminster. If the provisions for the first of these methods are upheld in the Australian Courts it will not be necessary for the Commonwealth to request legislation at Westminster and no constitutional questions will arise in the United Kingdom.
8. The State Law Officers have informed us, in the discussions referred to, that they can and will challenge the part of the Bill providing for the first method. The extent to which the High Court of Australia will assume jurisdiction to determine the validity of the request and consent provisions of the Bill and express an opinion on the constitutional relationship between the United Kingdom and Australia is a matter of Australian law on which we have received conflicting advice from the Commonwealth Solicitor-General and the State Law Officers. The position can only be resolved when the Commonwealth legislation is passed and is challenged in the High Court of Australia.
9. In these circumstances it is not, in our opinion, necessary and indeed it would be undesirable, so far as the legal considerations are concerned, to anticipate events by declaring at the present time the response which the United Kingdom would now make to any request received in the future from the Commonwealth.
[UKNA: CAB/1/148/131]