British High Commission, Canberra, 17 March 1975
Confidential
Privy Council Appeals Abolition Bill 1975
1. You will already have received my letter of 27 February to say that the above Bill2 had been rejected by the Senate on 25 February, and I understand also that Brian Barder3 arranged to send you a copy of the Hansard account of the second reading of the Bill in the Senate where it had been received on 19 February after passage by the House of Representatives on the previous day. You probably have already formed your opinion of the debate but I thought you might find it useful to have in addition to the Hansard texts of the speeches on its second reading in the House of Representatives and also our comments.
2. The general impression from the debate is that the Opposition were hard put to it to adduce sufficient respectable constitutional arguments for opposing the Bill. The Government’s arguments in its favour which the Opposition found difficult to counter were, in no particular order of importance, the following:
(a) Australia’s national pride which is undermined by a provision in its Constitution whereby Australian legal cases can be heard in a court in a foreign country. (On the other hand, Senator Greenwood4 thought it in some way humiliating for Mr Whitlam to go ‘cap in hand’ to Westminster, requesting the enabling legislation.)
(b) All appeals on Australian matters should be heard by the Australian High Court particularly in view of the integrity and ability of its judges which have been attested to on many occasions (see column 1, Page 56, Representatives 11 February).
(c) The reluctance of the Privy Council to upset judgements of the Australian High Court (see page 390, Representatives 15 February).
(d) The convolutions of Australian constitutional law and especially the complications introduced by the Federal system, which, it is said, make it difficult for the judges of the Privy Council who are on unfamiliar ground to rule on Australian constitutional matters. (Column 2, page 391, Representatives 18 February.)
(e) Consideration of social factors in the development of law and the attitude of judges. There is no doubt that Australian social attitudes and values differ from those in Britain, and, as was remarked on a number of occasions during the debate, Britain’s legal system is undergoing a change with our membership of the EEC. (See, e.g. column 2, page 399, Representatives 18 February.)
(f) The cost of appeals to the Privy Council. (See page 426, Senate 25 February.)
3. The Opposition scarcely referred to these points presumably since, as stated by the Opposition leaders in the debate in both Houses, they are in general agreement with the principles behind the Bill. Their reasons for opposing it were essentially two in number; first that Mr Whitlam was using an improper mechanism by which to change the Constitution (and that in any case the UK Parliament would probably refuse to enact the Westminster Bill (see column I, page 416, Senate 25 February). According to the Opposition, the Constitution should only be changed by referendum, the basis for which should be established by the Constitutional Convention. It is of interest here that the new Attorney-General, Mr Enderby5 (column 1, page 399, Representatives 18 February) accused the Opposition of lack of enthusiasm for the Constitutional Convention and of hindering its work by disagreement over the Senate representation (see my letter 1/14 of 1 November) whereas the truth appears to be that Mr Whitlam is less than enthusiastic about the Constitutional Convention which he sees as a forum where the States can oppose the policies of the Federal Government. This brings me to the second of the Opposition’s arguments, that the abolition of appeals and references to the Privy Council from States’ Supreme Courts and States’ Governments, without their approval is an infringement of their rights. This argument, which [was] put very clearly by Senator Everett6 (see column 1, page 425, Senate 25 February) is undoubtedly the most effective shot in the Opposition’s locker, but even this is somewhat weakened by the States’ right to contest the Bill, should it be passed, in the High Court. The weakness of the rest of their armoury was exposed very effectively by Senator James McClelland7 in his winding up speech for the Government in the Senate. This speech will give you some idea of the effectiveness of this new Minister in debate as I mentioned in my letter of 14 February.
4. I would draw your attention to an amusing incident in the debate in the House of Representatives. Mr Jim Killen8 was chosen by the Opposition as their chief spokesman, as the orator most likely to succeed on shaky ground. He delivered himself of an impressive speech in favour of the Bill then realised that it was the wrong speech. He had in fact given his speech in support of the other Privy Council Appeals Bill, to abolish appeals from matters which have been referred from the States’ Supreme Courts to the High Court (see my letter 3/3 of 27 February), but quite undaunted came back later in full song when he had realised his error.
5. The Hansard extracts of 18 February in the House of Representatives and 26 February in the Senate also include the debate on the other Bill, The Privy Council (Appeals from the High Court) Bill 1975.9
1 J.M. Hay, British High Commission, Canberra; A.R. Clark, South-West Pacific Department, Foreign and Commonwealth Office.
2 The Australian Cabinet approved the reintroduction of the Bill on 28 January 1975 (NAA: A5931, CL377, decision no. 319 on submission no. 1544, ‘Privy Council Appeals Abolition Bill’).
3 Brian Barder, Counsellor, British High Commission, Canberra, 1973–77.
4 lvor John Greenwood, Senator (Liberal) for Victoria since 1968; Commonwealth Attorney-General, 1971–72; Minister for Health, March–August 1971.
5 Keppel Earl Enderby, Attorney-General, 10 February–11 November 1975.
6 Mervyn George Everett, Senator (ALP) for Tasmania since 1974.
7 James McClelland, Senator (ALP) for New South Wales since 1962; Manager of Government Business in the Senate, 1974.
8 Denis James Killen, a barrister and Member of the House of Representatives (Liberal) for Moreton, Queensland since 1955.
9 The Bill was reintroduced in the House of Representatives in May 1975 in accordance with section 57 of the Commonwealth Constitution. The intention was to prepare the ground for a double dissolution election (of both Houses in full, rather than an election for the lower House and a half-Senate election). The Senate rejected it again on 21 August 1975 and it therefore became a double dissolution issue. After Whitlam’s dismissal on 11 November 1975 by Sir John Kerr, the Governor-General, Malcolm Fraser, the new Liberal Party Prime Minister, recommended to Kerr a double dissolution election. The Privy Council Appeals Abolition Bill 1975 was one of the Bills listed as grounds for dissolution by the new Prime Minister, despite the fact that his party had voted against it. Kerr, however, insisted on the inclusion of all qualifying Bills in the double dissolution procedure as he wanted to ensure that if he won the election, Whitlam would have the opportunity to hold a joint sitting to pass these bills. Whitlam lost the election of December 1975 so the Bill was never passed (Twomey, The chameleon crown. pp. 144–45).
In 1986 the Australia Acts were passed. These are two separate but related pieces of legislation: an Act of the Parliament of Australia (No. 142 of 1985), and an Act of the Parliament of the United Kingdom (c.2 1986). These Acts eliminated the remaining ties between the legislature and judiciary of Australia and their counterparts in the United Kingdom. Section 1 of the Australian Act provides that no Act of the UK Parliament enacted from 31 March 1986 will extend to the Commonwealth, a state or a territory as part of its law. Section 2(2) gives state parliaments ‘all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State’. Section 11 terminates appeals and references from state courts to the Privy Council. It repeals the Judicial Committee Act of 1833 to the extent that it was part of the law of the Commonwealth, a state or a territory. In the theory, as had been argued in the Whitlam era, the 1833 Act might still be invoked to support a British Government request to the Privy Council for an advisory opinion on an Australian matter, but according to Twomey, ‘It is difficult to imagine the circumstances in which such an opinion would be sought, especially as the opinion would not be binding’. Section 15 of the Act provides that the Australia Acts and the Statute of Westminster can only be repealed or amended by a Commonwealth Act passed at the request of or with the concurrence of the parliaments of all the states. (Twomey, The chameleon crown , pp. 258–61).
[UKNA: FCO 24/2077]