Attorney-General’s Department, Canberra, 3 January 1975
Confidential
The Prime Minister’s Discussions in London Concerning Constitutional Matters, 20 and 24 December 1974
The Prime Minister had discussions with the United Kingdom Prime Minister, the Secretary of State for Foreign and Commonwealth Affairs and the United Kingdom Attorney-General on 20 December 1974.1 On 24 December the Prime Minister had a further discussion with the Lord Chancellor.
2. This present note is not a summary record of all that was said in the course of the discussions. It concentrates rather on the principal matters emerging from the discussions and on the Prime Minister’s intended future courses of action as mentioned by him following the discussions. The note also mentions various points that require attention before Parliament meets on 11 February.
3. The discussions with Mr Wilson and his Ministers on 20 December covered the following topics–
- Abolition of appeals and references to the Privy Council.
- The hearing of appeals and references by Australian Privy Councillors who are High Court Justices.
- The proposed Queensland reference to the Privy Council of questions relating to Her Majesty’s Royal Style and Titles in Queensland.
- Channels of communications between the States and The Queen.
- Honours (in the context of channels of communications).
4. The Prime Minister referred in detail to the endeavours being made by certain States to by-pass the High Court of Australia. He noted the Tasmanian and Queensland efforts to obtain an advisory opinion on certain sea-bed questions under section 4 of the Judicial Committee Act 1833. On the advice of both Australian and United Kingdom Ministers Her Majesty had decided not to refer the Tasmanian and Queensland petitions to the Privy Council. The Prime Minister noted also that Queensland was currently endeavouring to have referred for advisory opinion of the Privy Council questions concerning Her Majesty’s Royal Style and Titles. He noted the position regarding inter se questions and the history of the High Court’s practice in regard to those questions under section 74 of the Constitution. The Prime Minister observed that the sea-bed questions would now be litigated in the High Court of Australia, commencing on 11 March 1975. He also referred to the proceedings instituted by the Australian Government in the High Court in connection with the Queensland Appeals and Special References Act.
5. In the discussion on 20 December the Prime Minister sought first to persuade the United Kingdom Ministers that the best course would be to have appeals in those cases in which an appeal could still be brought to the Privy Council from an Australian Court heard by a bench of the Privy Council consisting of High Court Justices who hold appointments as Privy Councillors. Mr Whitlam said that he had suggested this to Mr Heath shortly after the Australian elections in December 1972. He referred to the problems of securing the passage of the Privy Council Appeals Abolition Bill. He noted that it had been the practice for High Court Justices to be appointed as members of the Privy Council. Originally, this may have been in the nature of an ‘honorific’. In recent years, however, High Court Justices had sat from time to time on the Privy Council. The Chief Justice had recently been a member of a Board hearing an Australian appeal.
6. United Kingdom Ministers did not give a clear ‘Yes’ or ‘No’ answer to Mr Whitlam’s proposal that remaining appeals from Australia be heard by Australian Privy Councillors sitting in Australia. However, it appeared that they did not view the suggestion favourably.
7. In the further discussion that took place on 24 December with the Lord Chancellor, Lord Elwyn Jones2 made it quite clear that the United Kingdom Government would not respond favourably to the proposal. The Lord Chancellor did go so far as to say that he would be prepared, with the agreement of the Chief Justice of Australia, to include a Justice of the High Court on every Board hearing an appeal from an Australian Court. Indeed, he would be prepared to include two Justices on such Boards.
8. Mr Whitlam said that he would need to consider the suggestion. It would be necessary for additional High Court Justices to be appointed as Privy Councillors and those appointments are made on the recommendation of the United Kingdom Prime Minister. Moreover, the High Court’s list currently includes some major constitutional litigation and it might be difficult to spare a Justice, or two Justices, for appeal work on the Privy Council in London.
9. After the discussion with the Lord Chancellor on 20 December3 the Prime Minister said that he would now proceed with the introduction of the Privy Council Appeals Abolition Bill and the companion Bill, the Privy Council (Appeals from the High Court) Bill, the purpose of which is to abolish appeals in those cases in which an appeal still lies from the High Court. The Prime Minister proposes to introduce the two Bills in the first week of the February sittings. He asked that a strong second reading speech be prepared. We are to include material pointing up the way in which the States have been endeavouring to by-pass the High Court—this is their real intention although they have never openly said so. The resort to the ancient provisions of section 4 of the Act of 1833 is simply a device to avoid the High Court. Reference should be made in the draft speech to the initial efforts of Tasmania in connection with the sea-bed petitions. Tasmania’s first efforts were made in the days of the McMahon Government when it was proposed to that Government that it should join with Tasmania in seeking an advisory opinion from the Privy Council. The then Australian Government firmly rejected the suggestion on the grounds particularly that the High Court would be by-passed and that there could be two streams of judicial authority. Reference will of course also be made to the action of the then Government in 1968 in introducing the Privy Council (Limitation of Appeals) Bill which was passed with the full support of all parties.
10. The terms of the Privy Council Appeals Abolition Bill and the scheduled Westminster Bill have been under discussion with United Kingdom officials. In the course of discussions in London in November 1974 a way was found through a problem of legal substance that had developed since the Bill was first introduced by the Prime Minister in the House of Representatives in May 1973. Our First Parliamentary Counsel has re-drafted certain provisions of both Bills. In discussions in London on 17 December United Kingdom legal advisers indicated that the adjustments to the Bills met with their approval. They said that they had referred the revised texts to United Kingdom Parliamentary Counsel but that they did not expect any substantial points to be raised. We must get a firm response from United Kingdom officials in the next week or so.
11. With regard to the proposed Queensland reference concerning Her Majesty’s Royal Style and Titles, Mr Callaghan said that the papers had reached him. He said also that he proposed to send a reply to Queensland stating that he would not send the papers on to Her Majesty at this stage. This was obviously said with the current proceedings in the High Court in mind. Nevertheless, the intimation to Queensland will be a positive step from the Australian Government’s point of view. The impression gained from the discussion on 20 December was that the provisions of section 4 of the Act of 1833 are probably ‘a dead letter’ so far as references of Australian questions are concerned. It seems unlikely that United Kingdom Ministers will go so far as to advise the Queen to refer any proposed State reference to the Privy Council against the views of the Australian Government. We must nevertheless follow up the proposed administrative arrangements which are designed to supplement the Privy Council Appeals Abolition Bill.
12. With regard to the proposed Queensland reference, it would be helpful for the Prime Minister if the United Kingdom could advise him when Mr Callaghan has communicated with Queensland.
13. In the discussion on 20 December the Prime Minister raised the question of the mode of appointment of State Governors. The Prime Minister said that it was inappropriate for State Governors to be appointed by the United Kingdom Government. He referred to the appointment of Sir Henry Winneke as Governor of Victoria on the recommendation of United Kingdom Ministers and by Her Majesty employing Her United Kingdom Royal Style and Titles. Mr Whitlam said that he had no ambition to be saying who should be a State Governor. He did not believe the Australian Government needed to come into the matter but he would wish the communication to be made through the Governor-General. There was discussion of the possibility of appointments of State Governors being made by the Queen on the recommendation of State Premiers. This was queried by Mr Wilson and also by Mr Callaghan who said that to let the Premiers have direct access to The Queen would give them a status that they did not now have. There also seemed to be some continuing United Kingdom view that State Ministers have no constitutional position in relation to the Queen. Mr Whitlam noted Mr Callaghan’s caveat. There could be a problem also in regard to other matters involving communications from the States to The Queen—in particular, in regard to proposed references under section 4 of the Judicial Committee Act 1833 for the advisory opinion of the Privy Council. It would not do to have State Ministers advising the Queen in relation to such matters. It would probably be difficult to confine to the appointment of Governors the circumstances in which State Ministers might advise the Queen directly.
14. As matters stand, there is something of a dilemma on the issue of State communications to The Queen. In the case of the appointment of State Governors, for example, the present procedures are plainly anachronistic; on the other hand, awkward implications could arise out of the development of a system enabling State Ministers to advise The Queen directly.
15. On 20 December there was a brief discussion of the Honours questions. The Prime Minister said that his Government was looking at the Canadian system and that it wanted to have something on those lines. He said that it would be an embarrassment to the Australian Government if there were two systems of Honours once an Australian system had been promulgated. It would be inappropriate for the British Government to be putting recommendations on Honours to The Queen. The Prime Minister referred to his plans to have a high level committee representative of both Australian Government and State Government interests which would review nominations and make recommendations.
16. While no clear answer was given it would seem unlikely that the United Kingdom Government would desist from making recommendations for United Kingdom Honours where State Premiers had conveyed their wishes to the United Kingdom Government.
17. On 17 December Mr Yeend, Mr MacDonald of the Australian High Commission and I had had a discussion with Sir Martin Charteris and Mr Heseltine4 on the Honours question. The Prime Minister did not find it possible, l believe, to discuss the question with The Queen5 and an appointment that he had made for Sir Martin Charteris to call on him on Boxing Day had to be cancelled because of the Prime Minister’s return to Australia.
18. Mr Yeend will be reporting separately concerning Honours but it may be useful to state my understanding of the position, which should be checked out with Mr Yeend.
19. On 17 December Sir Martin Charteris gave us to understand that Her Majesty would be glad to establish a new system of Honours. It seemed, however, that Charteris envisaged two systems of Honours running for the time being. The expectation would be that the old system would in due course die out. On timing, Charteris did not anticipate any new system being in force before 1977, which is Her Majesty’s Jubilee Year.
20. My understanding is that the Prime Minister wishes to move very quickly to establish a new system—indeed, to establish a new system this year. It would seem that this would probably mean having two systems for the time being.
21. Returning to the question of abolition of appeals and references to the Privy Council, it would seem that before 11 February the Prime Minister should advise Mr Wilson of his intention to introduce the Privy Council Appeals Abolition Bill as revised. It can be assumed that the text of the Bill and the text of a scheduled Westminster Bill will be settled with United Kingdom officials well in advance of 11 February. A State Premier or two will be visiting London from 23 to 30 January, according to press reports today. A decision will be needed on whether the Prime Minister should write to Mr Wilson before 30 January. Perhaps there is no need to wait until 30 January. Mr Wilson could be advised confidentially of the Prime Minister’s intentions. It can no doubt be assumed that when they are approached by State Premiers later this month United Kingdom Ministers will be thoroughly discreet concerning the matters that Mr Whitlam discussed with them in December.
1 See Document 497.
2 Lord Chancellor, 1974–79.
3 A mistake: the meeting was on 24 December.
4 William Heseltine, Deputy Private Secretary to the Queen, 1972–77.
5 Whitlam did discuss honours with the Queen—see Document 499.
[NAA: A5034, SR 1974/3013]