Canberra, 11 December 1974
Confidential
Channels of Communication between The States and The Queen
Background
In his letter to Mr Wilson of 6 June 1974 the Prime Minister wrote as follows:–
‘There are two matters. The first concerns relations in the Queen’s Australian realms between the Australian Government and the States and between the Australian Government and Her Majesty. The second is concerned with making our own High Court the final court of appeal for Australian matters.
‘On the matter of communications from the Australian States to Her Majesty, the present position is that these are in the most instances channelled through United Kingdom Departments and Ministers. It is my view that all Australian communications to The Queen should be channelled through the Governor-General who, by the Constitution, is Her Majesty’s representative in Australia. I accept that there may need to be exceptions, but what I wish to establish is the general principle, on the basis that special exceptions could be the subject of later consideration and, as necessary, by me with the State Premiers.
‘Associated with this is the question of responsibility for tendering advice to Her Majesty in connection with matters arising in Australia under United Kingdom legislation applying as part of the law of Australia.
‘A recent instance was the tendering of advice to the Queen on petitions from two Australian States requesting her to refer certain sea-bed questions to the Judicial Committee of the Privy Council. On that occasion both Australian and United Kingdom Ministers advised Her Majesty that the petitions should be refused. Mr Heath informed me that he thought British Ministers should tender advice to the same effect as I had proposed and that Australian Ministers should also tender advice. I took the view that the matter was one for the advice exclusively of Her Majesty’s Australian Ministers, particularly as it raised questions as to the limits inter se of the powers of the Australian Government and the States which by Section 74 of our Constitution are reserved for the final decision of the High Court of Australia.
‘It has transpired that the Governor of Tasmania received letters from the then Secretary of State for Foreign and Commonwealth Affairs from which the Governor of the State apparently understood, quite wrongly, that Her Majesty did not act on the advice of Her Australian Ministers, but acted solely on the advice of United Kingdom Ministers.
‘There are other circumstances in which similar problems of procedure as well as of substance can arise—e.g. in connection with the furnishing of advice under section 735 or section 736 of the United Kingdom Merchant Shipping Act of 1894 with regard to State legislation amending Imperial merchant shipping legislation applying as part of the law of an Australian State.
‘These two issues arise because legal developments have not kept pace with political realities. In the case of communications with The Queen, the problem has developed because she is now our sovereign in our own right and the legal forms and procedures have not kept pace with the substantive changes that have taken place over the past three quarters of a century in Constitutional relations between Australia and the United Kingdom. As I have explained, this is a matter involving both procedure and substance—the channel of communications from Australian Governments to Her Majesty and the source of advice to Her Majesty on Australian matters. I believe the way to give full expression to our independent status is to make arrangements under which our own political processes and our own Courts can resolve within Australia, or directly with Her Majesty through the Australian Government, all Australian issues.
‘Unless this position is achieved, you and your colleagues—and I would imagine your successors for some time to come—will be sure to receive recurring requests for resolution of issues between the Australian and the State Governments.’
2. Mr Wilson replied as follows on 1 August:–
‘As regards the question of communications from the Australian States to The Queen, it seems to me that it would not be appropriate to arrange for communications from the States to be forwarded through the Governor General, rather than through British Ministers, so long as responsibility for advising the Crown (on those matters on which advice is necessary) continues to rest on our Ministers here in London. I am not entirely clear from your letter whether you wish Ministers in the United Kingdom to be divested of this responsibility in favour of Australian Commonwealth Ministers. If this is your intention, it would seem to raise grave difficulties of principle unless the State Governments concur in the change. As you yourself point out, there is a question of substance here associated with the purely procedural matter of the channels of communication.
‘It seems to me, therefore, that we cannot establish a general principle such as you propose without further consultation and that, in view of the Federal nature of your constitution, some understanding between you and the State Premiers is the first requirement. A satisfactory solution can only be achieved on the basis of mutual agreement in Australia, and until then I think it would be wrong for us unilaterally to alter the established constitutional relationship between the United Kingdom and the States. But I have no doubt that any British Government would be ready, by the appropriate constitutional means, to give effect to any alternative arrangements agreed in Australia .
‘The Merchant Shipping Act 1894 illustrates one means by which such changes can be made. I understand that, before your government came into office, agreement had been reached between the Commonwealth Government, the State Governments and Mr Heath’s Government that Sections 735 and 736 of this Act should be repealed by means of the request and consent procedure. If you wish, we remain ready to follow that procedure:
‘I am very sorry that I cannot go further than this to meet your wishes and sincerely hope that you agree that these matters should not be allowed to cast any shadow on relations between our two Governments.’
Discussions between Australian and British Government Officials in London, 18 & 19 November 19741
3. As foreshadowed by Mr Wilson’s letter of 1 August 1974, the question of channels of communication from the Australian States to the Queen proved to be the most difficult of the matters discussed.
4. British officials plainly took the view that there is a continuing constitutional link between the Australian States and the Queen and also between the Australian States and the United Kingdom Government. They pointed to the continuing authority (at least in theory) of the United Kingdom Parliament to legislate for the States in purely State matters and to the inability of State Parliaments to amend United Kingdom legislation applying in the States (i.e., by reason of the continued operation, in relation to the States, of section 2 of the Colonial Laws Validity Act 1865).
5. More than the question of channel of communication is involved. Also involved is the question of which Ministers give advice to the Queen in respect of State matters. These questions arise principally in connection with the reservation of Bills under the Australian States Constitution Act 1907 and the Merchant Shipping Act 1894, the disallowance of Bills, the appointment of Governors, the conferring of Honours and issuing of Royal Charters.
6. The most recent striking example of the participation of United Kingdom Ministers in State matters is the appointment of Sir Henry Winneke as Governor of Victoria. The appointment was made by the Queen, as Queen of the United Kingdom and employing the United Kingdom Royal Style and Titles, on the advice of United Kingdom Ministers. The instrument of appointment was counter-signed by the Secretary of State.
7. A British official referred also to Mr Whitlam’s reported reference in his discussions with Mr Heath in April 1973 to his government’s view that in some respects the Australian Government did not mind the Australian States having a residual colonial status.2 He seemed to think that this further supported the British impression that the Australian Government only wanted the British Government to abdicate from their responsibilities to the States, in order that these responsibilities could be assumed by the Australian Government
8. Australian officials said this was not correct. We believed that there were matters on which the States should, and under our proposal would, advise the Queen; for example, the appointment of State Governors. We wished to establish what other matters there might be.
9. Australian officials urged upon United Kingdom officials that constitutional changes had already occurred by convention without legislation and it was no longer appropriate for advice in respect of any Australian matter to be furnished to the Queen by United Kingdom Ministers. United Kingdom Ministers should drop out of the picture in State matters both as advisers and also as the channel of communication to the Queen.
10. Though at first appearing to suggest that the position was immutable unless altered by the most formal legislative means, British officials eventually accepted that changes could come about in a less formal way. However, they are clearly of the view that the agreement of the Australian Governments would be necessary before any change could be made in regard either to the channel of communication or to the responsibility for giving advice to The Queen. Generally, British officials stood firmly on the grounds set out in Mr Wilson’s letter of 1 August 1974 in which the British Prime Minister had said some understanding between the Australian Prime Minister and the State Premiers was the first requirement. It would seem, however, that the United Kingdom would no longer raise objections to communications from the States being channelled through the Governor-General if the prior agreement of the States had been obtained. Also, it would seem that the United Kingdom would not insist upon furnishing advice to the Queen in State matters if the Australian Governments were in agreement on the means for furnishing advice from Australia to the Queen.
11. Relevant also in this matter is the question of the anachronism in the instructions to the Governor-General, on which a separate briefing note has been provided.
Suggested Approach
12. Obviously, in the light of Mr Wilson’s letter of 1 August 1974 and the views expressed by United Kingdom officials on 18 and 19 November, progress will be very difficult to achieve until agreement has been reached at the Australian end.
13. Nevertheless, it is suggested that in his talks with Mr Wilson, the Prime Minister might be able to impress upon Mr Wilson the complete inappropriateness in this day and age of the procedures still being employed in connection with Australian State matters. The appointment of Sir Henry Winneke as Governor of Victoria is a clear case in point and it might be used to illustrate the need for change.
14. Agreement by Mr Wilson to make a change unilaterally seems most unlikely. However, some progress would have been made if Mr Wilson could be persuaded to agree to a joint statement drawing attention to the inappropriateness of the present position and of the clear need for change.
15. If something like this were to result from the forthcoming talks in London the Australian Government would, it seems, be better placed than it is now to take an initiative with the States for the purpose of revising current procedures.
1 Harders headed the Australian delegation at these talks, accompanied by Emerton, G.J. Lindell (Attorney-General’s Department) and officials from the High Commission in London. The UK delegation was led by A.R. Rushford (Deputy Legal Adviser, Foreign and Commonwealth Office) and Foreign and Commonwealth Office officials. For the record of the talks, see NAA: A432, 1973/3262 part 6.
2 See Documents 460 and 461 .
[NAA: A432, 1973/3262 PART 6]