London, 26 January 1975
Confidential
At our meeting on 20 December,2 I undertook to consider further the suggestion you made that an Australian ‘panel’ of the Judicial Committee of the Privy Council might be set up, which would be composed of Judges of the High Court of Australia who were Privy Councillors and would sit in Australia to hear all appeals to Her Majesty in Council originating in Australia.
We have examined this suggestion carefully, but see considerable difficulties in what you propose, as Elwyn Jones indicated when you discussed all this with him on 24 December. On the purely procedural side, the setting up of an Australian ‘panel’ would involve two departures from precedent, namely that the entire bench would be composed of Australian judges, and that the Judicial Committee as then constituted would be sitting outside the United Kingdom. Procedural problems should never be insuperable, but such departures from precedent would raise wider issues, since they would have implications for other members of the Commonwealth who have a similar relationship to the Judicial Committee. I doubt, therefore, that it would be possible to settle the matter in relation to Australia in isolation or without consultation with others concerned. But there is a substantive obstacle. As at present constituted, the Judicial Committee is ‘independent of the High Court of Australia’. However, if the bench were in future to be composed of Australian Privy Councillors, all of whom were judges of the High Court, this would have the practical—though not the theoretical—effect of substituting the High Court for the Judicial Committee for appeals originating in Australia. This would alter the balance of the existing system and would undoubtedly be widely objected to as being a stratagem devised to circumvent the difficulties involved in legislating to abolish appeals to the Privy Council. I have to say that in these circumstances, as Elwyn Jones pointed out, it would not be proper for the United Kingdom Government to act as you suggest. I take it from your decision to introduce a revised Privy Council Appeals Abolition Bill, which you conveyed in the message John Armstrong delivered to me on 17 January, that you have drawn a similar conclusion. (I have of course noted your request to treat this information as confidential until an announcement is made.)
I should just stress that what I have said above in no way affects Elwyn Jones’ suggestion that an Australian Judge should always sit on the Judicial Committee when an appeal originating in Australia is heard—provided, of course, that the Chief Justice of Australia is able to arrange for a judge to be available.
Your officials have asked us for our urgent comments on the revised drafts of a Privy Council Appeals Abolition Bill and scheduled Westminster Bill which were handed over shortly before your visit. I am glad to say that we have no comments on the drafting of these Bills, which appears to reflect fully the points our officials made in the useful discussions they had with yours here in November. But I must repeat what I said in my message of 1 August 1974,3 that we shall not be able to reach a decision on the introduction at Westminster of the scheduled Bill until you are able to say, in the light of any legal proceedings following the enactment of legislation, that it is still your wish to invoke the ‘request and consent’ procedure. If taxed on the point after introduction of your Bill, we shall have to make it clear that the United Kingdom Government are not committed to introduce the scheduled Bill.
Your officials also gave us, before your visit, the draft of an ‘undertaking’ to be given by the United Kingdom Government in relation to the operation of section 4 of the Judicial Committee Act 1833. I fear that I cannot comment now on this draft. As you will recall, the aide memoire left with your department by our High Commission in Canberra on 8 July 1974 included a proposal that when appeals from State courts to the Judicial Committee had been abolished, discussions should take place between our two governments to formulate certain understandings relating to the operation of section 4. Your officials asked during the talks in November for our agreement to your referring to the proposed understandings in the Australian Parliament, if the Privy Council Appeals Abolition Bill were to be re-introduced. We have looked at this again very carefully, but have come to the conclusion that we cannot modify our view that such understandings can be approved and take effect only when appeals from State courts to Her Majesty in Council have already been abolished—in other words, only after successful passage of the proposed legislation and the determination of any legal challenge to it—and that it would not be proper to reveal in advance the possibility of understandings between us on section 4. I shall accordingly be grateful if you will make no public or other reference, without our consent, to the fact that we would be willing to reach such understandings.
I should like to take this opportunity to refer to the forthcoming visit of the Premiers of Western Australia and Queensland. I would have been ready to receive them, as a matter of courtesy and in accordance with precedent, had the time proposed for their visit not coincided with my departure for Washington with Jim Callaghan. Lord Goronwy-Roberts, Parliamentary Under-Secretary at the Foreign and Commonwealth Office, will now receive them on 28 January as representative of the Foreign and Commonwealth Secretary. I should emphasize that he will listen to their representations and explain our general approach to Australian constitutional matters as appropriate, but it is not our intention that he should engage in substantive discussions with them. He will make clear that we are not prepared to allow the States’ Governments, particularly by raising hypothetical questions, to involve us in domestic Australian matters.
We think it desirable to put the position of the United Kingdom Government publicly on record, so that there should be no risk of any misunderstanding on the part of the Premiers. Accordingly, I attach the text4 of a statement the Foreign and Commonwealth Office intend to issue after the Premiers have called.
Once again, I am very sorry that I have not been able to go further to meet your wishes. However, as you have recognised in both public and private statements, it is not in our—or in anyone else’s—interests that Her Majesty’s Government in the United Kingdom should continue to be embroiled in the internal or domestic affairs of Australia. The inevitable corollary of this is that the United Kingdom Government and Parliament cannot be the instruments to impose solutions.
1 Sent as FCO telegram 94 to Canberra.
2 2 See Document 497.
3 See Document 493.
4 Not published. The statement attached to this telegram (no. 90, to Canberra, 24 January 1975) had been prepared in advance. It explained that Goronwy-Roberts received the premiers of Western Australia and Queensland at their request on 28 January. Sir Charles Court and Mr Bjelke-Petersen stated the views of their governments. Goronwy-Roberts responded that the UK Government regarded the issues as ‘essentially matters for resolution by Australians in Australia’. Where changes in the present system might require amendment of the Australian constitution, means of doing this existed which would in no way involve Her Majesty’s Government in the UK. On the other hand the British Government had no wish to stand in the way of the implementation of any changes in respect of constitutional matters which had been agreed upon by those concerned in Australia (UKNA: FCO 24/2075).
[UKNA: FCO 24/2075]