Attorney—General’s Department, Canberra, 11 July 1974
Confidential
Privy Council Appeals Abolition Bill
Attached is a copy of a message concerning the Privy Council Appeals Abolition Bill which Mr Aiers, of the United Kingdom High Commission, delivered to me on 8 July.1
2. The message is discouraging.
3. It says in the first paragraph that United Kingdom Ministers wish to await the enactment of legislation in Australia and any legal proceedings which may ensue there before indicating their attitude to a request and consent for legislation at Westminster.
4. This is a reference to the dual approach adopted in the Australian Bill which unilaterally abolishes appeals from Australia and also requests and consents to the enactment of United Kingdom legislation for that purpose.
5. The United Kingdom response could, I think, have been predicted. The dual approach always involved the risk that the United Kingdom would wait and see whether Australia’s unilateral abolition would succeed. If it did, there would be no need for legislation at Westminster. Several of us, among whom I was included, felt at the time of preparation of the Bill that the United Kingdom would probably respond in the way it has now.
6. It should be noted that United Kingdom Ministers have refrained at this point from stating what their attitude would be to a request and consent by the Australian Government and Parliament with which the Australian States were not associated. No doubt, if the Privy Council Appeals Abolition Bill is passed by the Parliament, there will be a challenge by the States to both limbs of the Bill (i.e., the unilateral abolition provisions and the request and consent provisions).
7. In the second and third paragraphs the United Kingdom message discusses the question whether in considering a petition under section 4 of the Judicial Committee Act 1833 Her Majesty should act on the advice of United Kingdom Ministers or of Australian Ministers. The message makes quite plain the British view that it is the advice of the United Kingdom Ministers that is relevant. Section 4 of the Act of 1833 was the provision invoked by Tasmania and Queensland recently in connection with certain Sea–bed Petitions. On that occasion both United Kingdom and Australian Ministers gave advice to The Queen and the advice was to the same effect, namely, that the Petitions should be refused.
8. Clearly, there will need to be further discussion regarding section 4 of the Act of 1833. Papers are being prepared for discussion with you.
9. You may wish to discuss also the form of the Privy Council Appeals Abolition Bill and the timing of its introduction.
10. The United Kingdom message was delivered also to the Department of the Prime Minister and Cabinet and I am keeping in touch with that Department concerning future action at the Departmental level.
1 The message conveyed the recommendations recorded in Document 481.
[NAA: A432, 1973/3262 PART 6]