London, 12 December 1974
Confidential
Talks between the Prime Minister and the Prime Minister of Australia, 19 and 20 December 1974-Constitutional Issues
Points To Make
United Kingdom Policy
1. The United Kingdom Government have no wish to continue to be involved in Australian constitutional matters. We should gladly relinquish our remaining involvement in them if we could properly do so. But we have little freedom of manoeuvre since any action taken by the United Kingdom Government without a consensus among the various Australian parties concerned would lay the United Kingdom open to the charge, both in Britain and in Australia, of having connived at circumventing the Australian Commonwealth Constitution by strengthening Canberra at the expense of the States.
2. Substantive issues, and not simply procedural matters, are involved. Without common agreement, Mr Whitlam’s proposal to abolish remaining constitutional links raises fundamental difficulties of a legal and practical nature.
3. We are anxious that constitutional issues should not overshadow or prejudice discussion of other matters.
4. Just as Mr Whitlam faces opposition in Australia, the United Kingdom Government could face difficulties at Westminster. General arguments of constitutional propriety would make it difficult for HMG to introduce any legislation into the United Kingdom Parliament in the absence of a consensus in Australia.
5. The Queen must not be drawn into any controversy. The present system divides the responsibility for advising Her Majesty on Australian matters between Australian Commonwealth Ministers on the one hand (i.e. on matters within the competence of the Commonwealth Government and Parliament under the Constitution) and United Kingdom Ministers on the other (i.e. on State matters). United Kingdom Ministers are well aware of the need to avoid confronting Her Majesty with a situation in which She received conflicting advice, and would not wish to countenance any innovatory measures that would depart from that principle.
(For use if Mr Whitlam raises specific issues)
Channels of Communication
6. If Mr Whitlam proposes that all State communications to The Queen should be channelled through the Governor-General, he should be asked whether either United Kingdom Ministers or Australian Commonwealth Ministers would play any part in the process. If neither are to participate, in effect there would be a substantial increase in the powers of the States which they have not solicited and which Mr Whitlam surely does not intend.
7. Alternatively, if Mr Whitlam’s intention is for the Governor-General to forward communications on State matters to the United Kingdom Government without having received any advice from Australian Commonwealth Ministers, it is difficult to see what purpose would be served by such a change.
8. However, if the Governor-General is to act on the advice of Australian Commonwealth Ministers in forwarding State communications direct to Her Majesty, this would be tantamount to a fundamental change in the constitutional relationship.
9. The channel of communication on State matters is implicit in various United Kingdom Statutes and in the Letters Patent and Royal Instructions. Any substantial change would involve legislative action. This should not create any real difficulty once there is a consensus in Australia.
10. United Kingdom Ministers do not engage in substantive discussions with State Premiers on a government to government basis, or with the Agents-General, but Ministers cannot refuse to accept courtesy calls. We do not accept the Agents-General in London as a channel of communication on State matters: the proper channel is from the State Governors direct to the Foreign and Commonwealth Secretary.
Abolition of Appeals and References to the Privy Council
11. As a result of the discussions between officials held in London in November, we hope that the difficulty over the drafting of clause 3 of the Westminster Bill (relating to references to the Judicial Committee) will be amicably resolved.
12. The Prime Minister should nevertheless make it clear that United Kingdom Ministers are in no way committed to introduce the Bill at Westminster whatever textual changes may be made.
13. Should Mr Whitlam succeed in abolishing appeals to Her Majesty in Council and references to the Judicial Committee by making use of existing powers of the Australian Commonwealth Parliament, the United Kingdom Government would not be involved and there would be nothing on which it need take action or to which it need take exception.
14. If Mr Whitlam says that in reintroducing the Australian legislation and the draft Westminster Bill into the Australian Parliament in the New Year he wants to refer to the United Kingdom offer of bilateral understandings on the operation of section 4 of the Judicial Committee Act 1833 (relating to special references to the Judicial Committee), such a suggestion should be resisted. The United Kingdom offer to reach understandings on references to the Judicial Committee was made earlier this year on the footing that any provision purporting expressly to amend or repeal section 4 of the 1833 Act was to be deleted from the Bill altogether, and that the understandings were to be approved and to take effect only after appeals from Australian State Courts to Her Majesty in Council had already been abolished.
15. Any proposal that appeals and references should be heard by a ‘Judicial Committee’ sitting in Australia, would need further consideration. This proposal was made by the Australian Commonwealth Government in December 1972, but they did not take it any further. We had taken it to be subsumed in the proposed Australian legislation.
The Royal Style and Titles in Queensland
16. The Foreign and Commonwealth Secretary has decided that the Queensland Government’s request that these matters be referred by Her Majesty to the Judicial Committee should not be formally submitted to Her Majesty until the litigation in the Australian High Court has been determined.
Background
General
17. Prior to 1900 the Australian States were colonies with no constitutional relationship with one another. The Commonwealth of Australia was formed by agreement of the six colonies. The Constitution of the Commonwealth was embodied in an Imperial Statute (the Commonwealth of Australia Constitutional Act 1900). In all matters which the six colonies did not specifically agree to transfer to the federation, the constitutional position of the States as colonies remained exactly as it had been previously. Following the Imperial Conferences of 1926 and 1930, the Statute of Westminster 1931 defined in agreed terms the modern constitutional relationship between the ‘Dominions’ (which included the Australian Commonwealth) and the United Kingdom. However, the Statute reaffirmed the limitations on the legislative powers of the Australian Commonwealth Parliament and specifically reaffirmed the right of the United Kingdom Parliament to legislate for the States without the concurrence of the Australian Commonwealth Government or Parliament on matters outside federal competence. The Statute of Westminster (although providing in section 11 that the expression ‘colony’ in future United Kingdom Acts was not to include any Australian State) thus preserved the quasi-colonial status of the States which as a matter of constitutional law and usage has remained unchanged since 1931 until the present day.
18. Mr Whitlam claims that the remaining constitutional links between State Governments and the United Kingdom Government are anachronistic. We do not dissent from this view and, as Mr Whitlam knows, we should not wish to place obstacles in the way of their abolition provided that it could be effected in a proper manner. Mr Whitlam has never made it clear in detail in exactly what way he would like to sever the links, except that he wishes to use the United Kingdom Government and Parliament as an instrument for the purpose.
19. Mr Whitlam may propose that the links should be severed by means of an Act of the United Kingdom Parliament passed at the request and with the consent of the Australian Commonwealth Government and Parliament. In our view it is open to doubt whether the making of such a request and consent is within the competence of the Commonwealth Government and Parliament under the Commonwealth Constitution but this is a matter which should, if possible, properly be settled by judicial processes before the High Court of Australia. (Failing a judicial decision of that Court, the United Kingdom Government would be left with no option but to make up their own minds on this issue in the light of their own legal advice.)
20. Even if the making of such a request and consent were held to be within Commonwealth competence, it would by no means follow that the United Kingdom Government would have to accede to a request since the question whether or not to accede to a ‘request and consent’ for legislation by the United Kingdom Parliament is one for resolution by a decision of policy by the United Kingdom Government.
21. Mr Whitlam is unlikely to propose any method of severing the links that would not disturb the constitutional balance between the Commonwealth and the States. In the absence of a consensus amongst the various Australian Governments concerned, the only proper means for altering the constitutional balance between the Commonwealth and States is under section 128 of the Commonwealth Constitution, which lays down that the Constitution shall not be altered except by a referendum procedure. This is designed to ensure that amendments can only take place with the consent of a majority of the States and of the Australian population. The United Kingdom has no interest or locus standi in the procedure under section 128 because the Constitution gives the Australians the means to make any amendment they wish to the Commonwealth Constitution by this procedure.
22. It is open to the United Kingdom Government to introduce, either of its own initiative or at the suggestion of some or all of the Australian Governments concerned, legislation in the Westminster Parliament to sever the quasi-colonial links between the United Kingdom and the States in such a way as to leave the State Governments in a condition of autonomy in State matters without disturbing the constitutional balance between the Commonwealth and the States. Mr Whitlam, however, does not want this to happen and even the States have never suggested it.
23. It seems that Mr Whitlam is trying to evade the procedure under section 128 of the Commonwealth Constitution because he could not be certain that a Bill for the necessary amending legislation would be passed by the Senate. Even if such a Bill were passed, he doubts whether he would succeed in the referendum (since 1900 only 5 out of 32 referenda have been successful).
24. With the exception of appeals to Her Majesty in Council and special references to the Judicial Committee (see paragraphs 28-32 below), Mr Whitlam may therefore want to seek agreement in principle to the proposal in his letter of 6 June 19741 to the Prime Minister that ‘all Australian communications to The Queen should be channelled through the GovernorGeneral’; he accepted ‘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’. It is not clear whether he fully appreciates the extent to which such a change is not simply a matter of form but involves a substantial change in the constitutional relationships between The Queen, the Australian Commonwealth Government and the State Governments (and the United Kingdom Government).
25. It is a fundamental constitutional principle that the Sovereign does not exercise constitutional powers except on the advice of an appropriate set of Ministers. On those rare matters connected with the Australian States which require action by The Queen, as opposed to the State Governors, She acts on the advice of United Kingdom Ministers. The Governor-General,who is The Queen’s representative in relation to the Commonwealth of Australia (but not in relation to the States), acts only on the advice of Australian Commonwealth Ministers in relation to Government matters. If Mr Whitlam’s proposal is that the Governor-General should forward communications on State matters to the United Kingdom Government without having received any advice from Australian Commonwealth Ministers, no purpose would seem to be served. If on the other hand Mr Whitlam’s proposal is that the Governor-General, acting on the advice of Australian Commonwealth Ministers, should forward State communications direct to Her Majesty, this would be tantamount to a fundamental change in the constitutional relationship. The channel of communication on State matters is implicit in various United Kingdom Statutes and in the Letters patent and Royal Instructions and any substantive change would involve legislative action; but this should not create any real difficulty once there is a consensus in Australia.
Channels of Communication
26. The matters on which correspondence from State Governments to The Queen is forwarded through the Foreign and Commonwealth Secretary can be classified into the following general headings:
(1) State Bills reserved by the Governor for the Royal Assent. The Letters Patent and Royal Instructions of 1900 to Governors specify what these are and that ‘one of Our Principal Secretaries of State’ shall act as the channel of communication. In practice, Reserved Bills have been confined for many decades to Bills altering a State Constitution or amending a Governor’s salary. These were specifically categorised for reservation in the Australia States Constitution Act 1907.
(2) State Bills subject to sections 735 and 736 of the Merchant Shipping Act 1894.
(3) Governors’ appointments and Commissions. In practice, Foreign and Commonwealth Secretaries nowadays accept the advice of Australian State Ministers about the appointment of Governors.
(4) Miscellaneous matters such as reports on State affairs, Governors’ leave of absence, messages of best wishes, condolence etc to members of the Royal Family.
(5) Honours. (See BriefNo 15)2
27. Mr Whitlam may refer to the question of access to the United Kingdom Government by State Premiers and the Agents General in London. On grounds of courtesy United Kingdom Ministers cannot refuse to receive State Ministers when they come to London but, as in the case of the visit to London in June 1973 of four Premiers to lobby on constitutional matters3 it is made clear to them that United Kingdom Ministers are not prepared to engage in substantive discussions with them on a government to government basis. The Agents General, whose offices in London primarily handle trade, migration and recruitment matters, have by custom and courtesy direct access to Whitehall departments but since Mr Whitlam came to power we have been careful not to treat them as a channel of communication on matters which should properly be forwarded by the State Governors direct to the Foreign and Commonwealth Secretary.
Abolition of Appeals and References to the Privy Council
28. A Privy Council Appeals Abolition Bill was introduced in the Australian House of Representatives in 1973. In it the Australian Government seek, in reliance on existing powers of the Commonwealth under the Constitution, to abolish both appeals from State Courts to Her Majesty in 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 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 principle. 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, which lapsed on the recent dissolution of the House of Representatives and Senate, has not been taken further in the Australian Commonwealth Parliament, but it is expected to be reintroduced in the New Year.
29. In 1973, United Kingdom 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.4 In June 1974, Ministers of the present United Kingdom Government agreed in Committee to maintain this line.5
30. Nevertheless, at the Australian Commonwealth Government’s request, the United Kingdom has commented on the technical suitability of the draft Bill to be introduced in the United Kingdom Parliament so that it would be in a form appropriate for enactment by Parliament if United Kingdom Ministers felt able to comply with the request. These comments, which were made on the clear understanding that there was no commitment that legislation would automatically or necessarily be introduced at Westminster if a request were made, have brought out one point of difficulty on the terms of the draft Westminster Bill. This covers clause 3 which seeks to amend section 4 of the Judicial Committee Act 1833 so far as it concerns references to the Judicial Committee on Australian matters. As drafted, clause 3 appeared unacceptable to the United Kingdom since it would prevent United Kingdom Ministers from advising Her Majesty to refer to the Judicial Committee any matter in connection with Australia even if the matter was of concern to the United Kingdom. In June 1974, United Kingdom Ministers agreed that the proposition should be put to the Australian Commonwealth Government that if the clause in question were to be deleted from the draft Bill, the United Kingdom Government would be willing to enter into appropriate understandings that 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. However, further discussions between Australian and United Kingdom officials in London in November pointed the way to some textual amendment that would avoid any express reference to section 4 of the Judicial Committee Act 1833. Such a device should provide a solution to the drafting problem. Australian Parliamentary draftsmen are to send to London for consideration detailed alternative wording.
31. It is possible that Mr Whitlam will wish to pursue the United Kingdom offer on understandings, and ask to be allowed to refer to them when reintroducing his legislation in the Australian Parliament (in order to make political capital out of them vis-à-vis the States). We would be opposed to any public reference to the offer until such a time as appeals from State courts had been abolished (i.e. after successful passage of the legislation and the determination of any legal challenge to it).
32. It is just possible that Mr Whitlam might suggest that appeals and references on Australian matters should be heard by a ‘Judicial Committee’ sitting in Australia and composed exclusively of Australian High Court Judges. Such a proposal is contained in the ALP Platform, and was put forward in December 1972 when the ALP first came into office, but not pursued. We should wish to consider carefully any new proposal on these lines, although it is unlikely that the State Governments would welcome an arrangement whereby appeals from State Courts and references on State matters went to a ‘Judicial Committee’ entirely composed of Commonwealth High Court judges. Legislation in Australia to abolish the existing right of appeal on State matters from the Australian High Court would also be necessary. The Privy Council Appeals Abolition Bill, in so far as it relies on existing powers of the Australian Commonwealth Parliament, seems to us a more satisfactory way of proceeding.
The Royal Style and Titles in Queensland
33. In retaliation for the Commonwealth Government’s Privy Council Appeals Abolition Bill, the Queensland Government enacted legislation in August 1973 (the Appeals and Special Reference Act 1973) which purported to regulate as a matter of State law the right to make appeals to Her Majesty in Council and special references to the Judicial Committee. In July 1974, citing the terms of the State Act, the Queensland Attorney-General applied to the Supreme Court of Queensland for a certificate that certain matters relating to the Crown in Queensland should be referred to the Judicial Committee. One of these matters concerned a special Royal Style and Title naming Her Majesty Queen of Queensland; another concerned the entitlement of Her Majesty to receive and act upon advice from Her United Kingdom and Queensland Ministers on matters concerning Queensland. On 14 August the Australian Commonwealth Government sought an injunction in the Australian High Court restraining the Queensland Attorney from pursuing his application but, although the High Court had not decided whether or not to grant the injunction, the Supreme Court has nevertheless granted the certificate. The Australian Commonwealth Government has also asked for an injunction restraining the Governor of Queensland from forwarding a request to Her Majesty for a special reference to the Judicial Committee, but the proceedings in the High Court will not be heard until the New Year.
34. On 29 November, the Queensland Governor sent a Despatch to the Foreign and Commonwealth Secretary requesting that Her Majesty should refer these matters to the Judicial Committee. He also said, however, that his Ministers thought it unlikely that Her Majesty would feel it appropriate to make a decision until the litigation in the High Court was determined. The Foreign and Commonwealth Secretary is to reply that, having noted that statement, he does not intend to submit the Despatch formally to Her Majesty or to tender any advice on it until the litigation has been concluded.
35. The Governor-General had already written to Sir Martin Charteris in October to convey the advice of Her Australian Ministers that Her Majesty should reject any request to refer these matters to the Judicial Committee. The advice maintained inter alia that it was for Australian Ministers to advise on these matters and that so far as they are justiciable they should be dealt with in the High Court. Although United Kingdom Ministers could not now confirm that it is unnecessary for them to give advice to Her Majesty on references to the Judicial Committee (since the Judicial Committee Act 1833 is an Imperial Act), at least the decision to delay submitting the Governor’s Despatch pending the High Court hearings should be welcome to Mr Whitlam.
1 See Document 493.
2 See Document 492.
3 See Documents 464-66.
4 See Document 470.
5 See Document 481.
[UKNA: FCO 24/1933]