London, 16 July 1973
Confidential
Australian Constitutional Issues
My colleagues may like a very short note summarising the issues before us on DOP(73)58 and 59.1
They are both legal and political. I understand that the Law Officers are circulating a separate note on the legal issues which are in dispute. The main political issue is how far we go to assist Mr Whitlam in his desire to strengthen the Commonwealth of Australia and its High Court and to reduce British involvement in Australian affairs (a legitimate aspiration in this day and age). As against this there is our traditional obligation deriving from constitutional arrangements made in 1900 and 1931, to protect the rights of Australian States. We must also keep in mind the constitutional position of The Queen and the embarrassment to Her of receiving conflicting advice from two of Her governments. The Prime Minister and I will be seeing Mr Whitlam in Ottawa next week.
We have to decide
i. Whether to give advice to The Queen on the States’ petitions to Her to refer the dispute about their off-shore sea-bed rights to the Privy Council; and if so, whether the advice should be positive or negative. Mr Whitlam will advise that it is none of our business and that The Queen should not refer the petitions. The issue of whether we should give advice is disputed. Since I circulated DOP(73)58 the States have put in more voluminous evidence. We have an obligation to study this and I therefore recommend that we should delay a decision until after this has been done. We should tell Mr Whitlam in Ottawa next week that this is the position and meanwhile give The Queen an interim reply.
ii. Whether to give to Mr Whitlam comments on his draft Bill on the abolition of States’ appeals and references to the Privy Council. Mr Whitlam has been waiting for some time for our answer. I understand that the latest representations from the States do not affect this matter and I recommend that we go ahead with giving our comments to Mr Whitlam as proposed in DOP(73)59. In doing so, we should make it clear that this is without commitment to introduce legislation at Westminster and that we welcome his attempt to secure agreement with the States on this issue.
1 See Documents 469 and 470.
[UKNA: CAB 148/131]