London, 20 December 1974
Confidential
Australian Constitutional Issues
After a brief introduction on other matters (recorded separately), Mr Whitlam said that he wished to raise some matters which were frankly of considerable political moment to him. These were not however matters of purely personal concern, nor were they solely relevant to a Labour Government in Australia. Indeed he thought that, if the present unsatisfactory arrangements continued they would remain a matter of importance to any Australian or British Governments.
Mr Whitlam said that, in Canada, any disputes between the Canadian Federal Government and the State Governments were settled there. In Australia however Britain was involved, even though machinery existed in Australia to settle these disputes in the Australian courts.
Mr Whitlam said that it might be thought that the current constitutional problems had arisen from some maladroitness on the part of the present Australian Labour Government. In fact the problems had arisen under his Liberal predecessors at a time when five of the State Premiers were members of the Liberal Party. From April 1970 until the election of the Australian Labour Government at the end of 1972, a bill had been on the notice paper in the Federal Parliament to legislate about off-shore mineral resources, designed to establish Federal authority below the low water mark. All the State Premiers had complained about this and only part of the relevant legislation had gone through Parliament in 1973. The bill had however gone through after a joint session in July this year and was now being challenged before the Australian High Court on the grounds that sovereignty in these matters properly rested with the individual states. The Federal Government, for their part, argued that at the time of Federation, the jurisdiction of the individual British colonies ceased at the low water mark, and that no greater authority was given the States at the time of Federation than had been available to the colonies beforehand.
Mr Whitlam said that the point which he wished to emphasise was that the legislation had been introduced at a time when all the State Governments were controlled by the opposition party. Furthermore, this was the type of problem which was bound to arise in the case of any Federal administration. There was however adequate machinery to deal with the problem, and the Australian Government saw no case or necessity for the British Government to become embroiled with it. The appeals to the Privy Council had always been regarded by the Australians as a dead letter in cases of this sort and they preferred to work on the assumption that such cases would be settled in the Australian High Court.
Mr Whitlam acknowledged that it was possible for the High Court to issue a certificate to grant an appeal to the Privy Council, but no such certificate had been issued since before the first war. Two States had now revived the issue and Mr Wilson’s predecessor had had to decide whether HMG should submit the matter to the Privy Council Judicial Committee. Fortunately both Australian and British Governments had advised The Queen that the matter should not be referred to the Judicial Committee and had also agreed that a satisfactory procedure existed whereby the case could be dealt with by the Australian High Court. A situation could however have arisen whereby the British and Australian Prime Minister s were giving The Queen different advice. Mr Whitlam reiterated that the particular problem of off-shore rights had not arisen before since it had only recently become a significant question.
The Prime Minister asked whether Mr Heath’s advice on this case had been related ad hoc to a particular case, or whether it addressed itself to the general question and could be taken as a precedent. Mr Whitlam said that he thought it was ad hoc , although clearly both Governments would be likely to follow any precedent set in this way. In reply to a further question from the Prime Minister , Mr Whitlam said that, following the advice to The Queen, the States had taken the matter to the High Court. The Attorney General asked whether the British Prime Minister’s advice had been that it was inappropriate to go to the Privy Council before reference to the High Court, or in any circumstances? Mr Whitlam said that the latter was the case. No-one in Australia had thought that this was a question which would ever embroil the British Government. Having submitted his advice to The Queen, Sir Alec Douglas-Home had communicated the result to the Governor of Tasmania. Independently, the Governor-General had communicated Her Majesty’s decision, based on her Australian Ministers’ advice to the Governor. The matter had only become public at the time of The Queen’s speech in Canberra in 1974 when The Queen had stated publicly that she had acted on the advice of her British and Australian Ministers. The Prime Minister asked whether this reference in The Queen’s speech had caused any reaction? Had it been accepted in the States concerned? Mr Whitlam said that the Labour Government of Tasmania had written an unpublished letter to the Governor-General to protest at the advice given to The Queen by Australian Ministers.
The Prime Minister asked whether the States were criticising the type of advice given by the Australian Government, or the fact that they had given any advice. Mr Whitlam said that he thought it was the latter. The Queensland Government had now raised three questions concerned respectively with aboriginal land rights; Australian control of mineral rights; and oil drilling on the Great Barrier Reef. Only the third of these was of prime importance to the Australians and worth raising with Mr Wilson.
Mr Whitlam said that the next point he wished to raise concerned The Queen’s title. Commonwealth Governments had agreed at one of the Commonwealth Prime Ministers’ Conferences in the 1950s that the title of The Queen as Head of the Commonwealth should only be changed with the Sovereign’s agreement. Most Commonwealth Governments had introduced appropriate legislation and Sir Robert Menzies had introduced legislation in Canberra whereby The Queen took the title of Queen of Australia for the first time (although the reference to Australia followed a reference to the United Kingdom). Last year he had raised with The Queen the question of omitting any reference in her title to the United Kingdom or to her description as Defender of the Faith.3 The Queen had raised no objection; indeed she had told him that King George VI had questioned the retention of any reference to the United Kingdom in the royal title in the case of other Commonwealth monarchies including (at that time) Pakistan and Ceylon.
The State of Queensland had now put through an act of Parliament in recent months suggesting that the Privy Council should be petitioned to decide whether it was appropriate for The Queen to be known in Queensland by reference to the United Kingdom and Australia only, and whether a reference to Queensland should not be included in her title there. The Australian Government had contested this and had pointed out that it could have international implications, quite apart from the proliferation of titles which a ruling of this sort might produce. The Australian Government had decided that the change of The Queen’s title could only be proposed by them and that State Governments were not empowered to carry out such changes. Mr Whitlam went on to say that, as he understood it, it was now for the British Government to advise The Queen on this question. The Australian Government had advised her that she should not refer the question to the Privy Council and had also taken the view that it was a matter which concerned The Queen as Queen of Australia only. The Prime Minister commented that Charles II had once resisted a proposal that he be recognised as King by Parliament on the grounds that those who accorded recognition could subsequently withhold it. If, like Quebec, the Queensland Government were ever to come under secessionist influence (and he was not of course suggesting that this was likely), they might conversely support a movement explicitly to exclude any reference to Queensland in The Queen’s title. Mr Whitlam agreed that a situation of this sort was possible in Quebec, but thought that it was excluded by the Commonwealth of Australia Act 1900, under which individual states did not have the power to change the character of the monarchy. The Prime Minister conceded this, but thought that there was still the possibility of a messy situation.
Mr Whitlam reiterated that his main concern was that the situation which had occurred over off-shore rights in Tasmania and Queensland had now arisen again in Queensland where, although legal machinery to resolve the problem existed, the Australian and United Kingdom Governments thought that they both had the right to offer advice to The Queen. From his point of view the neatest and most natural solution would be for HMG to advise The Queen not to refer the question to the Privy Council. Alternatively, they might advise The Queen to delay any action until a rule had been given by the Australian High Court. In this case however it might be preferable to leave it to the High Court to reach a decision, whatever it was. The Prime Minister asked whether the Australian Government would accept the ruling from the High Court. Mr Whitlam said that they would of course accept the High Court’s ruling, since the Australians believed that the question should be decided in Australia and not by a court sitting in another country. He regretted the efforts which were being made to involve the British Government in these domestic disputes.
The only solution was for the British Government to advise The Queen in the same sense as the Australian Government. There was no sense in letting the matter hang about. Why should HMG not take the decision now?
The Prime Minister recalled that Mr Lester Pearson had once raised the question of amending the 1867 North America Act with reference to Quebec in order to remove the power of intervention from the British Government. Quebec had however objected and we had taken the line that we could not introduce legislation solely on the advice of the Federal Government. Mr Whitlam acknowledged that the North America Act could still only be amended by legislation from the British Parliament. The Australian constitution however could be amended by a referendum of the Australian people. In this way, the Australians had the power of altering their own constitution in a way which the Canadians did not.
The Prime Minister asked for clarification whether Mr Whitlam was asking us to advise against any reference to the Privy Council in the Queensland case or to make a general ruling for the future. Mr Whitlam replied that he was not suggesting that the British Government should make any type of declaration, but hoped that we could be severely discouraging about the prospects of any reference to the Privy Council. The High Court of Australia was available to settle such cases. If HMG were to advise the reference of a case to the Judicial Committee it would be a positive change of constitutional practice. The Australian Government would think it unhelpful, and even improper, for the British Government to await a decision from the Australian High Court on this matter. He hoped that the British Government would now to say to The Queen that this was a matter for the Australian Courts alone and should therefore not be referred to the Judicial Committee.
On the general question of the Privy Council Mr Whitlam said that when he had seen Mr Heath in April last year,4 he had suggested that the general question of principle could be resolved by ensuring that those Australian Judges who are appointed by the British Prime Minister to the Privy Council Judicial Committee (which included some but not all the Judges of the High Court of Australia) heard Australian appeals in Australia itself. Mr Heath had suggested that the Australian Government might put forward a request to the British Government to make changes in accordance with the terms of the Statute of Westminster. A bill had accordingly been introduced into the Australian Parliament but had lapsed when Parliament had been prorogued. Long legal argument had followed and the bill had subsequently taken a different form. Mr Whitlam was not now disposed to introduce the bill at all since it was clear to him that the Australian Senate would probably not pass it. He had not realised at the time when the bill was first drafted how obdurate the Australian Senate would be. He commented that a curious situation existed in Australia whereby both the Prime Minister and the Senate could separately call for elections. In the light of this Parliamentary situation, he did not think that it would be useful for him to introduce a ‘request and consent’ bill, and he was not disposed to resubmit legislation.
In reply to a question, Mr Whitlam said that there could not be any appeals to the Privy Council from Australia on inter se matters without the approval of the Australian High Court. About six years ago Mr Gorton’s Government had abolished appeals to the Privy Council in matters on which the Federal Parliament had legislative authority. There could however still be appeals from State Supreme Courts in matters where a dispute existed between the State and Federal Government, e.g. in estate property cases arising from State laws.
Mr Whitlam said that in general he thought it was inappropriate for questions in dispute between Australian citizens to go to a British Court and asked whether the British Government would allow a dispute between two British citizens to go to the Court of another country. The alternative courses for the Australians were to have a referendum to abolish appeals to the Privy Council or an Act of Parliament requesting the British Government to abolish them. As he had explained, the Senate, as at present constituted, would not go along with the second of these alternatives.
Mr Whitlam confessed that if the Prime Minister was unable to do what he hoped, this would cause him some embarrassment. He hoped that some way might be found to set up an Australian division of the Privy Council, sitting in Australia and consisting of Australian Judges. He mentioned that Chief Justice Barwick5 had recently been authorised by the Lord Chancellor to hear an appeal to the Judicial Committee from Australia. He would ask the Prime Minister to appoint all seven Judges of the Australian High Court to the Privy Council. It would be up to the Lord Chancellor to appoint them to hear cases from other countries, if he so wished, although Mr Whitlam’s personal view was that this would be as inappropriate as Australian cases being heard in Courts abroad. In response to a question from the Prime Minister , Mr Whitlam confirmed that Australian Judges on the Judicial Committee had frequently sat on appeals to the Privy Council from elsewhere, e.g. the Caribbean.
Finally, Mr Whitlam said that there were two further points which he wished to raise. The first concerned State Governors. ( Mr Whitlam said that there had been press reports that he proposed to raise with Mr Wilson the question of powers of States’ Agents-General but he had denied publicly any intention of raising this question and would do so again.) He emphasized that he had no ambition to have any say in who should be the State Governors in Australia. This was, he thought, something for the State Governments themselves to recommend. Whereas the Australian Prime Minister signed the Commission for the Governor-General, on The Queen’s Command, as Queen of Australia, it was the British Foreign and Commonwealth Secretary who signed the Commissions for State Governors, but on The Queen’s Command as Queen of the United Kingdom. He reiterated that he did not wish the Australian Federal Government to involve themselves in this question, and thought that it should be for the State Premiers to advise The Queen through the Governor-General on who should be their respective Governors.
Mr Whitlam recalled that there had been a problem in 1945 over the appointment of a Governor in New South Wales. Following this, it had become the custom for the Colonial Secretary6 (and subsequently the Foreign and Commonwealth Secretary) to advise The Queen along the lines recommended by the State Premier. Mr Whitlam remarked that for the first time all State Governors were now Australians. He believed that the correct channel for recommendations on the appointment of Governors was through the Governor-General. Indeed, he would have no objection to State Premiers making their recommendations direct to The Queen. He proposed to mention this idea to The Queen when he lunched at Buckingham Palace today.
Emphasising that he was purely seeking information, the Prime Minister asked whether Mr Whitlam really meant that there would not be any objection to State Premiers sending their recommendations direct to The Queen. Mr Whitlam said that this was not an easy matter, but he could see no objection in this case although he would prefer to see such recommendations channelled through the Governor-General. Mr Callaghan expressed some surprise at this. He said that the British Government had on the whole tended to restrict direct access between the State Governments and The Queen and he had on occasion avoided the submission of despatches from the States to The Queen for this reason. Mr Whitlam accepted that a system of direct access might open Pandora’s box and repeated that access through the Governor-General might therefore be preferable.
The Prime Minister asked whether the Governor-General would have the right to alter a recommendation and also whether the British Government had ever queried recommendations put forward by State Governments. Sir Morrice James said that this had occurred on occasions. The Queen required Ministerial advice to enable her to deal with recommendations, and he wondered whether State Premiers had the necessary status to advise The Sovereign as Queen of the United Kingdom. Mr Harders pointed out that the Governor-General had no power to make recommendations without Ministerial advice, but Mr Whitlam said that he still maintained his preference for avoiding the involvement of the Federal Government. Mr Callaghan thought that there was a risk that the encouragement of direct access by State premiers to the Governor-General without advice from the Australian Prime Minister would increase their power. This was a matter for the Australians, but he felt it right to make this point. Mr Harders asked how else the matter could be resolved? Mr Callaghan said that he did not know, but did not think that transferring the power of the Foreign and Commonwealth Secretary to the Governor-General would solve the problem of disagreement between the Federal Government and the States. British involvement would admittedly be avoided, but Mr Whitlam might find himself with some further problems as a result. Mr Whitlam concluded by saying that it was as Queen of Australia that The Queen should appoint State Governors, to which Mr Callaghan said that in that case it would have to be on the advice of Australian Ministers.
Mr Whitlam said that the second point he wished to make related to honours. This was mainly the problem of knighthoods, which they did not like. He would much prefer to follow the system adopted in Canada with honours coming from The Queen of Australia. He also thought that machinery should be set up in the Governor-General’s office to process honours recommendations received from the State Governments. It would, however, be an embarrassment to him if, once an Australian Order had been created, there should be a second channel through which State Governments could secure honours through The Queen of Britain. This would be inappropriate but it was not an immediate issue. But he would not want an Australian system by-passed or aborted by having a second channel. The Governor-General’s office would be given a quota, and would act without interference from the Federal Government. Mr Yeend pointed out that the idea had been mooted of a ‘national committee’ representing all the States and the Commonwealth and processing recommendations received both from the Prime Minister and from the State Governments but also with the ability to make nominations themselves. The Prime Minister explained about the Honours Scrutiny Committee which operated in this country and which was composed of a group of people of wide political acceptability.
Mr Whitlam said that he hoped that if he could secure approval of The Queen of Australia for an Australian honours system, the British Government would not raise objections. The Prime Minister asked how far State Governments would be likely to object to this change in system. Mr Whitlam agreed with a comment by Mr Callaghan that the Governments would expect to be consulted over such a change and acknowledged that some of the States might not want it. He certainly did not wish this to become a matter of dispute between the British and Australian Governments. The Prime Minister commented that it was even more important that it should not become a matter of dispute with the Palace. He asked whether Mr Whitlam proposed to have a referendum or a Royal Commission on the issue. Would the States like Mr Whitlam ’s proposals? Mr Whitlam said that it was purely an administrative matter. There was no need to consult people. He explained that his aim was to equate the position of The Queen of Australia in this matter as closely as possible with that of The Queen of Canada.
The Prime Minister said that the British Government would like to be disembroiled from this matter as far as possible provided we could be certain that there was a reasonable consensus in Australia. Mr Whitlam replied that he would never get unanimity in all these questions, including honours. The question of knighthoods was as emotive as that of the National Anthem. If the British Government took no decision on these matters they would in effect be taking a decision to maintain the present situation, thus reaching a decision adverse to him.
In conclusion, the Attorney General said that one of Mr Whitlam’s proposals would result in British Ministers having a residual function in the selection of members of the Judicial Committee and thus of the Australian panel of judges. Any such proposal would be something totally peculiar to Australia, and he did not know whether other Dominions in a similar relationship to the Privy Council would wish to follow this precedent. The main difficulty to be overcome, in his view, would be that the Australian States might see the proposal as a means of by-passing the existing system which provided for them what they saw as some protection. At the moment a system existed which appeared to ensure some balance between the States and the Federal Government. However much the British Government wished to disembroil themselves, they did at the moment hold some sort of balancing role. The Prime Minister said that in effect we wished to get out of this problem in such a way as not to leave greater problems behind.7 The Attorney General said that he wondered how far we could justifiably by-pass a system if by so doing we were going against the wishes of the individual States.
The Prime Minister said that he understood very clearly that the whole constitutional question was bedevilled and upset by the development of the off-shore question.
If the British Government ignored the wishes of the States and went along with Mr Whitlam ’s proposal, we would in effect be supporting the Federal position over off-shore rights. He wondered whether the States might not feel more relaxed on the general question of where ultimate jurisdiction lies when the cases relating to off-shore limits have been decided.
Mr Whitlam said that the Australian Government had challenged Queensland’s action in the High Court over the Royal Style and Title and the Queensland Government had asked Mr Callaghan to submit the question to The Queen. Mr Callaghan said that the present position was that he did not propose to submit the Governor’s despatch to The Queen at this stage, although the Foreign and Commonwealth Office opinion was that, under the 1833 Act, advice would ultimately have to be tendered on the question. Mr Whitlam said that the Queensland Government were in effect trying to revive an Act of 1833 in order to by-pass the 1900 Commonwealth Act. He could understand why Mr Callaghan was taking no action, but pointed out that it was open to him to advise The Queen that the case should not be referred to the Privy Council. He nevertheless expressed appreciation for Mr Callaghan’s action in not referring the case and hoped that Queensland would be told that this was what he was doing. The Prime Minister pointed out that, however unlikely this might be, if the High Court were to rule that the case could go to the Privy Council, the British Government would have to tender advice to The Queen. Mr Whitlam agreed and acknowledged that the Privy Council case would require a political decision in due course. In reply to a question, he did not think that it would require legislation in Australia; it was basically an administrative decision to be taken in the United Kingdom.
Finally, the Prime Minister said that he would think carefully about what Mr Whitlam had said. Mr Whitlam thanked Mr Wilson but emphasized again that these constitutional issues were of great importance to him, and were not by their nature likely to be resolved by delay. Mr Wilson had argued that the State Governments might be upset by action on our part, but any inaction could upset the Federal Government just as much. Mr Whitlam repeated that no decision on our part would be tantamount to an adverse decision for the Australian Government. The Prime Minister took note, and asked that references to Mr Callaghan’s failure to submit the Queensland case to The Queen should be kept confidential.
1 Patrick Wright, a British diplomat, was Private Secretary (Overseas Affairs) to the Prime Minister, 1974–77. His first record of the meeting (copy at UKNA: PREM 16/300) was dated 24 December 1974. It was amended in the light of observations by the Foreign and Commonwealth Office, the Lord Chancellor’s Office and Sir M. Charteris. The record published here is dated 7 January 1975.
2 The meeting was held at 10 Downing Street. Present, for the UK, Wilson, Callaghan, Samuel Silkin (Attorney-General, 1974–79), James (High Commissioner, Canberra) and officials. For Australia, Whitlam, Lionel Bowen, Harders, Armstrong (High Commissioner, London) and Yeend.
3 See Documents 456–59.
4 See Document 462.
5 Formerly Minister for External Affairs, 1961–64, Sir Garfield Barwick, Chief Justice of the High Court of Australia, 1964–81.
6 In 1945 this would have been the Secretary of State for Dominion Affairs, who became the Secretary of State for Commonwealth Relations, 1947-66, for Commonwealth Affairs, 1966–68, and for Foreign and Commonwealth Affairs from 1968.
7 The Australian record of the meeting records Wilson as saying, ‘We want to get out but we do not want to leave a stink behind’ (NAA: A1209, 1974/7123).
[FCO: 24/2074]