London, 18 February 1974
Confidential
Thank you for your letter of 23 January.1 I This reply deals exclusively with Australian matters and I trust that it will reach you in good time before your arrival in Australia with The Queen on 27 February. We are also considering the question of possibilities of conflicting advice to Her Majesty as it might arise in relation to other Commonwealth countries. I will write separately about this.
Our Ministers were, as you know, very much aware of the difficult position in which The Queen would have been placed had the advice on the Queensland and Tasmanian Sea-bed Petitions from Her United Kingdom and Australian Ministers been to different effects. We managed to avoid a conflict of advice on this occasion. But, in a letter of 18 January to the Prime Minister, Mr Whitlam repeated his view that in matters of this kind Her Majesty should be guided by her Australian Ministers. UK Ministers decided that we could not let Mr Whitlam’s remark go unchallenged, and r think you should know that Morrice James has been asked to inform the Australian Government of the British Government’s view in the following terms:–
‘The power created by section 4 of the Judicial Committee Act 1833 is a power vested in Her Majesty in right of the United Kingdom and not in Her Majesty in some other capacity. It follows that it is for United Kingdom Ministers to advise the Crown as to the exercise of the power and it is they who have always done so. In the particular circumstances of the Sea-bed Petitions, however, the United Kingdom Government acknowledge that Ministers of the Commonwealth of Australia should also have the right, if they think fit, to tender advice to the Crown, because in the view of both the Commonwealth Government and of the United Kingdom Government these Petitions involve questions that are in substance questions of the limits inter se of the constitutional powers of the Commonwealth and the States.’
The implication of this statement is, of course, that the British Government does not accept that there would be a Commonwealth veto on reference to the Judicial Committee of a petition where the Commonwealth did not, in our view, have any interest (e.g. a purely State matter). Indeed, the terms of the statement would not absolutely preclude conflicting advice being given by UK and Australian Ministers in a case in which we conceded that the Australian Government did have an interest. However, the outcome of the recent Sea-bed Petitions in which both governments made the same recommendation would no doubt be regarded as a relevant precedent in any future case of that kind.
For your information, I should also say that the only way in which the British Government could ensure that conflicting advice is not given to the Crown would be by a self-denying rule that they would not recommend a reference to the Judicial Committee unless it was known that Australian Commonwealth Ministers would agree to it, although I do not see how British Ministers could give any such assurance which would be binding on their successors. One can assume, however, that any British Government would do their best to avoid putting Her Majesty in constitutional difficulties.
The Privy Council Appeals Abolition Bill, which is now before the Australian Commonwealth Parliament, contains clauses purporting to abolish appeals to the Privy Council from Australian State Courts and references of Australian matters to the Judicial Committee. However, the enactment of this Bill is by no means certain. It is likely to run into opposition in the Senate; and the State Governments at present object to it and will almost certainly challenge it in the Australian High Court, if it is enacted. In any case it is doubtful whether these clauses would operate to prevent references on State matters though they would no doubt prevent Australian Ministers from asking for references on Commonwealth matters. In addition to clauses to this effect, the Bill also contains a clause ‘requesting and consenting’ to the enactment by the United Kingdom Parliament of legislation to the same effect. This clause may be invoked if the other clauses fail to achieve their object. Both for political and legal reasons, it may be difficult for the United Kingdom Government to accede to such a request, but it might provide an occasion for reaching understandings with Australian Commonwealth Ministers about the use of section 4 of the Judicial Committee Act, 1833, in relation to Australian matters.
We have been trying to identify other issues concerning Australia in which the possibility of conflicting advice could arise. We can see areas where by virtue of the Statute of Westminster there is the possibility of conflict between the United Kingdom, the Commonwealth and the States Governments but we see little likelihood that this would involve conflicting advice to the Crown. Another. matter in which the Crown could possibly become involved concerns the appointment of Governors. As you know, the Foreign and Commonwealth Secretary recommends names to Her Majesty on the advice of the State Government. In view of the nominal commitment in the ALP’s platform to abolish the office of State Governor, the present Australian Government might involve themselves in this area, for example, by objecting to a nominee or by seeking to appoint an Administrator instead of a Governor. In these circumstances, the Crown could face conflicting advice from United Kingdom and Australian Ministers. However, this contingency would seem fairly remote because three new Governors have been appointed during the past year, and the Commonwealth Government has not sought to intervene.
Some of these issues were also examined in the brief prepared for Mr Whitlam’s visit in April 1973, of which I enclose a copy.2 (Not all of this brief was discussed let alone agreed, with Mr Whitlam.) However, before we could be certain that all possible areas had been covered we should need to obtain further legal advice. It would also be difficult to be categorical on these matters without knowing how far the Commonwealth Government and the States are prepared to carry the dispute between them on such constitutional issues.
You asked whether there was anything you could usefully say to Mr Whitlam. Since the dispute between the Commonwealth and the States is still active, we for our part would not wish to recommend that you should raise them. But it could well be of course that Mr Whitlam will tell you of the position which Australian Ministers take.
1 See Document 469.
2 Not published.
[UKNA: FCO 24/1929]