London, 16 July 1973
Confidential
Australia: Abolition of Appeals and References to the Privy Council
Background
1. A Privy Council Appeals Abolition Bill (Annex A)1 was tabled in the Australian House of Representatives on 31 May. In it the Commonwealth Government seek, in reliance on existing powers of the Commonwealth under the Constitution, to abolish both appeals from State Courts to the Privy Council and references (as opposed to appeals) on Australian matters to the Privy Council. The Bill also contains a request for similar British legislation to be introduced in accordance with the ‘request and consent’ procedure in Section 4 of the Statute of Westminster. The intention, however, is to rely in the first instance on the Commonwealth’s own legislative powers. The States have objected to the proposed legislation on grounds that the constitutional balance would be upset without their consent (and indeed without consultation in advance); not all the States, however, object to abolition of appeals in itself. Mr Whitlam has said that they will be able to challenge the legislation in the Australian High Court.
2. The Bill raises two fundamental constitutional issues which are:
(a) the power of the Commonwealth Government to request and consent to legislation at Westminster on a matter affecting States’ rights without the consent of the States, and
(b) even if the Commonwealth Government may properly make a request, the constitutional propriety of the British Government acceding to it knowing that the States object.
3. The Law Officers’ advice in an Opinion of 12 June is that:
‘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. 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.2
4. Nevertheless, two questions arise at present for the British Government:
(i) whether any further comments should be given to the Commonwealth Government on the terms of the Westminster Bill, which is attached as a Schedule to the proposed Australian legislation; and
(ii) if so, what should be said.
5. On 4 (i) some initial drafting comments have already been passed to Canberra and incorporated in the Bill. The Prime Minister told Mr Whitlam on 6 June that we might wish to make further comments. Despite discussions which are taking place between the Commonwealth and States Governments, it seems likely that the draft legislation will be proceeded with when the Australian Parliament reassembles in August. It is, therefore, desirable, assuming that the major constitutional issues are resolved to our satisfaction, to ensure that the Westminster Bill is in a form which the British Government would be willing to introduce. As before, any comment which we make would be on the explicit understanding that the British Government is not committed to introducing legislation for the reason stated by the Law Officers (paragraph 3 above).
6. Notwithstanding this reservation, we shall, if we give the Commonwealth Government further comments on the terms of their Bill, inevitably increase their expectation that, if it becomes law and is not successfully challenged, the British Government would introduce legislation in accordance with their request. On the other hand it would be even less desirable to risk reaching a position where we agreed in due course to introduce legislation at the request of the Australian Commonwealth but then had to ask Mr Whitlam to amend his Act before we could do so.
7. On 4 (ii), my Legal Advisers at the FCO, in consultation with Parliamentary Counsel, suggest that the further amendments given at Annex B are desirable.3
8. Assuming that the Commonwealth legislation is passed and that litigation against it fails, it is possible that in about twelve months’ time at the earliest, but quite probably during the 1974/75 Parliamentary Session, a request for the introduction of legislation at Westminster might be made. Ministers will wish to be aware of this timing factor.
Recommendation
9. I recommend that, subject to receipt of a further message expected from Mr Whitlam about his Government’s discussions with the States, the Prime Minister should send to him our further comments on the draft Westminster Bill. Ministers should take note of the possibility of legislation being necessary during the 1974/75 Parliamentary Session, in the terms of the Australian Bill as affected by our comments.
10. In the absence of any comment by 24 July, it will be assumed that the above recommendation is agreed.
1 Not published.
2 See Document 469, Annex B.
3 Not published, but see Document 481 for the desired amendments.
[UKNA: CAB 148/131]