London, 24 January 1975
Confidential
I enclose a draft message2 which the Foreign and Commonwealth Secretary recommends the Prime Minister should send Mr Whitlam covering a number of aspects of Australian Constitutional matters.
At their meeting on 20 December,3 the Prime Minister undertook to consider further Mr Whitlam’s suggestion that an Australian ‘panel’ of the Judicial Committee of the Privy Council be set up to hear all appeals to Her Majesty in Council originating in Australia, which he envisaged as an alternative to legislating to abolish such appeals. The Lord Chancellor set out our objections to acting on this suggestion very clearly when Mr Whitlam called on him on 24 December.4 Mr Whitlam’s subsequent decision to re-introduce the Privy Council Appeals Abolition Bill as soon as the Australian Parliament resumes on 11 February, which he conveyed to the Prime Minister on 17 January, bears out the Lord Chancellor’s assessment in his minute of 24 December to the Prime Minister that Mr Whitlam very readily recognised the force of our arguments. However, we think it important that these should be set out in writing now: Mr Whitlam could well return to the charge if—as seems very probable—the Senate rejects the Bill, and he should be left in no doubt that our objections are fundamental and that his suggestion does not afford a fall-back solution.
On 11 December, Australia House gave us revised drafts of the Privy Council Appeals Abolition Bill and Scheduled Westminster Bill, together with a draft ‘undertaking’ to be given by the UK Government in relation to the operation of Section 4 of the Judicial Committee Act 1833. I attach a copy of their letter.5 They are now pressing for our urgent comments. In his message of 17 January, Mr Whitlam did not ask the Prime Minister to comment on these drafts, but it seems right that our views should be conveyed to him in a personal message from Mr Wilson. The draft Bills are acceptable to us from the drafting point of view, as they satisfactorily meet the points made in the discussions with Australian officials last November (my letter of 29 November to Tom Bridges). We have been at pains in the past to avoid committing ourselves to act on the ‘request and consent’ if it survived Parliamentary and judicial processes in Australia, and the message (and the statement referred to in paragraph 7 below) have been drafted to preserve our position.
However, the draft ‘undertaking’ presents difficulties. The understandings6 we proposed in relation to Section 4 of the 1833 Act in the Aide Memoire handed over in Canberra on 8 July (FCO telegram No 482 to Canberra), to which Mr Whitlam referred in his message of 12 December, were to be agreed and take effect only after appeals had been abolished. The reasons for adopting this position are set out in OPD(74) 15,7 particularly Annex C, and remain valid. Moreover, to discuss the precise terms of the proposed understandings now would be bound to create friction, since the draft the Australians have provided is couched in unacceptably wide terms. We should therefore maintain our position that understandings can only be reached after appeals have actually been abolished, and that in the meantime we wish no reference at all to be made to our willingness to reach such understandings.
Following Mr Whitlam’s visit, the Premiers of Western Australia and Queensland announced their intention to come to London to express their concern about the threat to States’ rights posed by certain proposals they believed he had put to the Prime Minister. The Prime Minister’s message to Mr Whitlam provides a suitable opportunity for Mr Wilson to tell Mr Whitlam how we plan to handle the visit.
Hitherto, in order to avoid becoming involved in Australian politics, we have remained cautious in what we say publicly about Australian constitutional matters. But neither the Australian Government nor the State Governments have been reticent about stating publicly what role, in their opinion, the United Kingdom Government should play. Our reticence has served to encourage both parties in this—and in the process the United Kingdom Government’s case has gone by default in Australia. It has also made the States very suspicious: several Premiers have said in public that they interpret our continued silence since Mr Whitlam’s visit as indicating that we accept his views. And even now it is open to question whether Mr Whitlam is really convinced of our determination not to allow ourselves to be used to circumvent the constitutional procedures available to him in Australia. During the meeting on 20 December, he deployed several times the tendentious argument that if we took no decision on constitutional matters, and in effect decided to maintain the status quo , this would be tantamount to taking a decision against the Federal Government. In saying this, he chooses to ignore completely the very real constitutional limitations on our ability to act at the instance of one party alone.
On both counts, therefore, we consider that the opportunity presented by the meeting should be used to issue a statement aimed at making our position in relation to Australian constitutional matters more clearly and widely known in Australia. A statement on the lines of the attached draft8 should serve both to discourage Mr Whittam from seeking to use us to by-pass the proper Australian procedures and to allay the fears and suspicions of State Governments that we shall act at Mr Whitlam’s instigation and in disregard of their views. Mr Whitlam may not like it—indeed he may resent it, although it does no more than reiterate points the Prime Minister has made in earlier messages, and what Mr Whitlam himself said at the Mansion House on 19 December (‘There is no possible advantage to Britain in embroiling The Queen, the Government or the Courts of Britain in such Australian domestic disputes.’)9 Nevertheless, we think it would be better to grasp this particular nettle firmly now rather than let Mr Whitlam go on thinking that if he keeps up the pressure, we will eventually give way. Our hope is that once we are clearly on record as regarding these matters as essentially for Australians to resolve, we will be better able to discourage both sides from continuing their attempts to embroil us, and in particular from bombarding us with statements of their views of actions the other side is thought likely to take. In that event, we should be able to revert to and maintain a low profile.
Our High Commissioner in Canberra agrees that a statement on the lines proposed should be made and has stressed the importance of giving Mr Whitlam the text in advance.
In considering how Lord Goronwy-Roberts10 might be advised to handle his meeting with the two State Premiers, we have come to the view that we can no longer argue that United Kingdom Ministers cannot enter into substantive discussions with State Ministers on a government-to-government basis. The constitutional position is that, subject to the powers of the Commonwealth Government under the Australian Constitution, the Australian States are to a large extent self-governing. Nevertheless, there are residual matters in which responsibility still rests with HMG in the United Kingdom. The fact is that in these matters the States are in a colonial relationship to HMG, and that in respect of these matters it is HMG which is responsible, either in its own right or in advising The Queen as to the exercise of Her prerogative powers. It therefore follows that in respect of these matters (whether they be purely State or inter se matters) State Premiers have a right of access to the United Kingdom Government in the person of the Foreign and Commonwealth Secretary.
However, in practice, we feel that this right of State Premiers’ access need not, indeed ought not to, involve United Kingdom Ministers in substantive discussions unless there are real and sufficient grounds for such discussions, such as an attempt by the Commonwealth Government to seek to push through blatantly unconstitutional measures. We do not feel that this position has yet been reached and therefore on 28 January we would propose to brief Lord Goronwy-Roberts to do no more in receiving the Premiers than to listen to their representations and to explain HMG’s general approach to Australian constitutional matters.
The need to make some statement of our position is reinforced by the news we have just heard that the two Premiers will be holding a joint press conference on constitutional matters on Monday afternoon 27 January, and that Mr Bjelke-Petersen will hold a press conference of his own after the meeting with Lord Goronwy-Roberts. If we are to give Mr Whitlam reasonable notice of the terms of our statement, the message should reach Sir M James not later than 2300 GMT on Sunday, 26 January, so that he can take action during the course of Monday morning local time.
The Lord Chancellor and the Attorney-General have approved the terms of the draft message and the draft statement. Parliamentary Counsel have no comments on the drafting of the Australian Bills.
I am sending a copy of this letter to Heatherington (Law Officers’ Dept), Owen (Lord Chancellor’s Office) and Brearley (Cabinet Office).
1 R.N. Dales, Foreign and Commonwealth Office; Assistant Private Secretary to the Secretary of State.
2 See Document 502 for the message as sent.
3 See Document 497.
4 On which see Document 502.
5 Not published.
6 Emphasis in original.
7 See Document 481.
8 See Document 502, note 4.
9 See Document 496.
10 Parliamentary Under-Secretary of State/Minister of State for Foreign and Commonwealth Affairs, 1974–75; Deputy Leader of the House of Lords, 1975–79.
[UKNA: FCO 24/2075]