Attorney-General’s Department, Canberra, 12 July 1974
Confidential
Privy Council Appeals—British Note
I was reminded by Mr Emerton2 today that a note is due from us concerning the message received from the British. He expressed the strong personal view that we should continue to try to deal with the form of the Bill at official level.
2. The British note3 makes two points:
(1) that the British have given no commitment to legislate until the legislation has been enacted and litigated in Australia;
(2) that they would prefer to see clause 3 of the Westminster Bill deleted.
3. As to point (1), I think that they are only saying more bluntly what they said before.
4. As to point (2), I strongly suspect that the question of the form of clause 3 has become entangled in the British mind with the disputed question who advises the Queen in the exercise of Her discretion under section 4 of the Judicial Committee Act 1833. Surely, for the purposes of the present matter, the question who advises the Queen under the existing provision must be put aside. What is involved in the present exercise is whether there should remain a procedure whereby Australian matters should be able to be referred to the Judicial Committee. We would expect the British to be in agreement with us on this basic point and we should be finding a form of words for inclusion in the Bill that will achieve that result.
5. The British suggestion for an understanding rather than legislation is an unsatisfactory compromise. Incidents causing possible embarrassment between governments could continue to arise. In any event the formula suggested by them does not deal with requests for reference by private individuals and it would raise questions when the Australian Government had a locus standi in terms of the arrangement and what were ‘state matters’. In other words it would raise quite unnecessary complications.
6. My suggestion is that our reply to the British should focus on the point that what we are seeking to achieve is elimination by legislation of all procedures whereby matters in truth Australian could be referred for decision to a tribunal outside Australia so that no incidents in the nature of the sea-bed petitions could arise again to cause possible embarrassment between governments. We would be surprised if the British were not sympathetic to that objective. To that end we suggest that clause 3 should be expressed as previously suggested but we are open to suggestions from the British on this point. The questions whether the powers vested in the Crown by section 4 of the Judicial Committee Act 1833 are exercisable by the Crown only on the advice of United Kingdom Ministers and whether section 4 operates only as part of the law of the United Kingdom are interesting ones that may have to be discussed in another context but they are extraneous to the real issues in the present matter.
1 A.C.C. Menzies, First Assistant Secretary (Advisings), Attorney-General’s Department.
2 I. D. Emerton, Assistant Secretary, Department of the Prime Minister and Cabinet.
3 See Document 482.
[NAA: A432, 1973/3262. PART 6]