London, 30 May 1974
Confidential
Australia: Abolition of Appeals and References to the Privy Council
1. A Privy Council Appeals Abolition Bill (referred to below as the Australian Bill) was tabled in the Australian House of Representatives last summer. In it the Australian (Commonwealth) Government seek, in reliance on existing powers of the Commonwealth under the Constitution, to abolish both appeals from State Courts to the Judicial Committee of the Privy Council and the right of the Crown to make references (as opposed to appeals) on Australian matters to the Judicial Committee for an advisory opinion. 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 Australian Bill gives effect to the Australian Government’s policy of strengthening its own position in Australia vis à vis the States; of reinforcing the powers of the Australian High Court; and also of getting rid of ‘anachronistic’ links between the States and the United Kingdom. The States have objected to the proposed legislation on grounds that the constitutional balance would be upset without their consent; 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 if they wish to do so. The Bill has not yet been taken further in the Australian Parliament, but it will be reintroduced in the new Parliament.
2. The Bill raises two fundamental constitutional issues which are:
(a) whether the Commonwealth has power 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 may properly do this, whether it would be proper for the British Government to accede to the request and consent knowing that the States object.
3. In 1973 UK Ministers decided to await the enactment of the legislation and the outcome of any proceedings concerning it in the High Court of Australia before indicating what response would be made to a request and consent for legislation at Westminster.1 In the opinion of the present Law Officers it would be desirable to maintain this course of action.
4. If this course is adopted, however, there nevertheless remains a problem upon which a decision is now required. The problem arises from the fact that the Commonwealth Government invited the United Kingdom to comment on the technical suitability of the draft Bill to be introduced in the UK Parliament (paragraph 1 above: the Bill is referred to below as the Westminster Bill) so that it would be in a form appropriate for enactment by Parliament if United Kingdom Ministers felt able to comply with the request. Certain textual comments have been put to the Commonwealth Government, although it was clearly stated that this was being done without there being any commitment that legislation would automatically or necessarily be introduced at Westminster if a request were made. A copy of the Australian Bill is at Annex A2 together with two drafts of the Westminster Bill, the first as originally tabled by the Commonwealth Government and the second incorporating the amendments which, except for clause 3, have been jointly agreed with the Australians.
5. In the course of discussing these amendments it has emerged that clause 3 of the Westminster Bill, which amends section 4 of the Judicial Committee Act 1833 (a copy of which is at Annex B and by which the Crown may refer to the Judicial Committee for hearing or consideration any matters which it shall think fit) so far as it concerns Australian matters, may be unacceptable to the United Kingdom even if the rest of the Bill, dealing with appeals to Her Majesty in Council, were acceptable for enactment by the UK Parliament. The Government may wish to make representations about clause 3 of the Westminster Bill before further proceedings on the Privy Council Appeals Abolition Bill are taken in the Commonwealth Parliament.
6. The choice is whether:
(a) to acquiesce in the present drafting of clause 3 of the Westminster Bill; or
(b) to suggest a change in the present drafting of the clause; or
(c) to ask for the clause to be dropped.
These 3 courses are discussed in Annex C. I consider, and the Law Officers agree, that the best course would be to try to persuade the Australian Government to drop the clause altogether.
7. I accordingly recommend that:
(a) we should continue to await the enactment of the legislation and any legal proceedings in Australia before indicating our attitude to a request and consent for legislation at Westminster;
(b) in the meantime we should send a message at official level (in accordance with the procedure followed for previous correspondence on this matter) inviting the Commonwealth Government to delete clause 3 from the draft Westminster Bill. In that event we would indicate our willingness to enter into appropriate understandings that, if appeals from Australian State Courts to Her Majesty in Council are abolished, the United Kingdom Government would not make any references on State matters, unless both the Australian Commonwealth Government and the Government of the State concerned concurred. This message would repeat that United Kingdom Ministers had not entered into any commitment to introduce legislation at Westminster.
8. In the absence of any comment by 10 June, I will assume that the above recommendations are agreed.
ANNEX C
1. Clause 3 of the Westminster Bill as at present drafted would, if enacted, prevent UK Ministers from advising Her Majesty to refer to the Judicial Committee any matter that arose in Australia or related solely or mainly to Australia or to a State or Territory of Australia whether or not the matter was of concern to the United Kingdom.
2. It is not easy to envisage a situation in which HMG might need to refer such a matter to the Judicial Committee under section 4 of the Judicial Committee Act 1833. In Practice section 4 is rarely invoked and the recent occasion on which the Australian States petitioned for a reference concerning seabed rights is believed to be the first occasion on which its use in relation to Australia has ever been considered. Theoretically, any question with a legal content that was in issue between the UK and the Commonwealth Government or a State Government could be referred to the Judicial Committee under section 4, but in practice the present Commonwealth Government (and probably successor Australian Commonwealth Governments also) would be averse to use of the Judicial Committee as an advisory or arbitral body, and this would almost certainly preclude reference of the question to the Judicial Committee.
3. There remains one situation in which a reference could be made to the Judicial Committee, that is, if a request were received either from the Commonwealth Parliament or a State Government for legislation by the United Kingdom Parliament and it were desired to obtain an opinion on the constitutionality of the request. However, the request could equally well be examined by a select committee of both Houses of Parliament (as was done in 1935 in respect of a request by Western Australia for legislation providing for the secession of that State from the Commonwealth of Australia) so that it would not be essential to rely on section 4 for such a purpose.
4. It seems therefore that the drafting of clause 3 of the Westminster Bill as proposed by the Australian Parliamentary Counsel would not in practice be unduly restrictive, but it is unnecessary and by imposing an explicit restriction on the States would be gratuitously offensive to them. If the United Kingdom were eventually to decide to comply with the request and consent for such legislation in spite of the political and constitutional objections to doing so, all that could be said for clause 3 is that it would take Australian matters out of the scope of section 4 altogether, thus removing the possibility of embarrassing requests from the State Governments to invoke it in the context of disputes between the Commonwealth and the States.
5. Alternatively, an attempt could be made to persuade the Commonwealth Government to adopt a narrower wording. No agreed formula on clause 3 has emerged from the consultations between UK and Commonwealth Parliamentary Counsel, but the Commonwealth Government could perhaps be pressed to drop the words ‘arises in’—these words are proposed for insertion by the Australian Parliamentary Counsel in the revised draft of the Bill at Annex A—and revert to the UK Parliamentary Counsel’s formulation or else UK Parliamentary Counsel might be able to suggest an alternative formulation which they could be persuaded to accept. However, it seems improbable that a satisfactory agreed formula would emerge from further discussions.
6. The remaining course is to endeavour to persuade the Commonwealth Government to omit clause 3 of the Westminster Bill altogether. An amendment such as clause 3 that would operate only as part of the law of the United Kingdom is not appropriate for inclusion in a ‘request and consent’ Bill under section 4 of the Statute of Westminster which contemplates an enactment operating also as part of the law of the Commonwealth of Australia. In the UK view section 4 of the 1833 Act which they seek to amend operates only as part of the law of the UK and has no operation as part of the law of Australia or of any other country but Commonwealth Ministers would almost certainly maintain that the section operates as part of the law of the Commonwealth as well as that of the UK, and as such confers powers on Her Majesty as Queen of Australia. In principle, any restrictions on the use of section 4 of the 1833 Act would best be formulated by means of understandings between the Governments concerned rather than in legislation and it is quite unnecessary to amend section 4 at all. But this course may not be easy in view of Mr Whitlam’s declared policy.
7. In this connection it should be borne in mind that, while the provisions of the Australian Bill that purport to abolish appeals from State courts to Her Majesty in Council could be challenged in the High Court of Australia as being outside the powers of the Commonwealth Parliament, it is by no means clear that the High Court would pronounce on the validity of the request and consent for enactment of the Westminster Bill and indeed it might not give a clear pronouncement on the effect of the Australian Bill on section 4 of the Judicial Committee Act 1833.
8. That being so, it seems that despite the difficulty of obtaining Australian acceptance (paragraph 6 above) the best course would be to ask the Australian Government to drop clause 3 of the Westminster Bill on the footing that, should appeals from State courts to the Judicial Committee be abolished, discussion should then take place between the UK Government and the Commonwealth Government at which appropriate understandings could be reached. These understandings might be to the effect that–
(a) the United Kingdom Government would not advise the Crown to make a reference on any matter in which any Commonwealth Government had a locus standi (including the Australian Commonwealth Government) without the concurrence of that Government;
(b) it would not be appropriate that references should be made in State matters, unless both the Australian Commonwealth Government and the Government of each State concerned concur in the making of the references.
1 See Document 466.
2 Annexes A and Bare not published.
[UKNA: CAB 1481145]