31 May 1973
SECOND READING SPEECH BY THE
PRIME MINISTER, THE HONOURABLE E. G. WHITLAM, M. P.
PRIVY COUNCIL APPEALS ABOLITION BILL 1973
PRIVY COUNCIL ( APPEALS FROM THE HIGH COURT) BILL 1973
Mr Speaker, I informed the House on 1 May of my talks
in London, just after Easter, with the British Prime Minister,
Foreign Secretary, Lord Chancellor and Attorney-General regarding
the abolition of appeals from Australia to the Privy Council.
I gave the House the reason for the Government's policy
on this question. The reason is obvious and sound. It is that
the High Court of Australia must become the highest court of the
land in all matters pertaining to Australia and to the legal
rights and obligations, in Australia, of its citizens. That
state of affairs should long since have been attained. The present
position is utterly anomalous.
Recent reports have come to my notice that the States
are proposing to petition the Queen to refer certain seabed
questions to the Judicial Committee of the Privy Council under
an Imperial statute of 1833. ThAt such action can be contemplated
serves only to underline what I am saying. It is no longer
appropriate that any possibility should still remain of any
government in Australia taking legal questions to, or of
Australian citizens litigating their differences before, the
courts of another country.
The course embarked upon in 1968 by the Government of that
time, with the support of the Australian Labor Party, when the
Government introduced the legislation contained in the Privy
Council ( Limitation of Appeals) Act 1968 for the
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purpose of limiting appeals from the High Court to the Privy
Council, should now be brought to its logical conclusion,
a conclusion which we at that time advocated in supporting the
Bill. The introduction of the Bills that the House is now
asked to consider takes the next and final step in that
direction. Mr. Speaker, when I spoke in the House on 1 May
I foreshadowed that the Government would follow the course
of introducing legislation requesting and consenting to the
enactment of British legislation abolishing appeals to the
Privy Council from State Supreme Courts in State matters.
I said that the enactment of such legislation by the
Australian Parliament would provide the opportunity, if so
desired, for a challenge to be made to the validity of the
legislation. If there were to be no challenge within a
reasonable period, or if the validity of the legislation is
upheld under challenge, the Australian Government would
expect that fte British Government would introduce into the
British Parliament the legislation requested and consented
to by the Australian Government and Parliament.
The first of the Bills that I now present and
describe to the House is the Privy Council Appeals Abolition
Bill. The Bill is based both upon the Australian Constitution
and the Statute of Westminster.
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The Bill has a two-fold operation. First, clauses
4 to 7 are what I may call self-operating provisions. That is
to say, they will operate of their own force by virtue of the
powers vested in the Australian Parliament. Secondly,
clause 8 requests the United Kingdom Parliament to enact
legislation in the terms of the Bill scheduled to the Act.
Both sets of provisions are directed to the same end, namely,
to bar appeals to the Privy Council from Australian courts
other than the High Court and to bar the reference to the
Privy Council of matters not being appeals from courts, that
arise in or in relation to Australia.
The provisions which I have described as self-operating
have been included in the Bill on the basis that the Australian
Parliament, as well as requesting and consenting to the United
Kingdom legislation on this matter, should assert all powers
open to it to achieve the same result.
Clauses 4 and 6( 1) of the Bill are directed to the
abolition of appeals from Australian courts other than the
High Court. Clauses 5 and 6( 2) are directed to ensuring that
Australian matters that are not appeals from courts shall not be
referred to the Judicial Committee of the Privy Council. These
clauses are intended to exclude resort to the Privy Council in
cases of the kind that the States, according to reports,
presently have under consideration.
The schedule to the Bill contains the terms of
the legislation which we would expect the British Government
to introduce in the British Parliament. Clauses 2, 3 and 4
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are to the same effect as the clauses in our own Bill that I have
just described to the House.
In connection with the petition on seabed matters
which the States are reported to be contemplating, I should
inform the House that I have sent a message to the British Prime
Minister. The substance of that message is that the Australian
Government considers it would not be appropriate for Her
Majesty to refer any such petition to the Judicial Committee.
I made the point to the British Prime Minister that
the provisions of section 4 of the Judicial Committee Act 1833,
under which the States apparently propose to petition Her
Majesty, will be included among the provisions that will be
repealed when the British Parliament enacts its legislation on
the request and consent of this Parliament. I added that this
Parliament already has under consideration the Seas and
Submerged Lands Bill which, when passed, will provide opportunity,
if it is desired, for all relevant seabed questions to be
determined by the High Court. The possibility of there being
two streams of authority must be avoided. The proper forum for
the determination of these important questions of Australian
constitutional law is the High Court of Australia.
Mr Sppaker, the second Bill is the Privy Council
( Appeals from the High Court) Bill. This Bill completes, so
far as the High Court is concerned, what the Privy Council
( Limitation of Appeals) Act 1968 commenced.
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The Act of 1968 abolished appeals to the Privy Council
from the High Court in all matters except purely State matters and
the so-called inter se questions.
The Constitution itself excludes appeals in respect
of inter se questions excepting upon the grant of a certificate
by the High Court. The High Court has granted only one
certificate and that in 1912. For all practical purposes
there is no appeal to the Privy Council from the High Court
in respect of inter se questions.
As to appeals to the Privy Council from the High
Court in State matters, the Australian Labor Party moved an
amendment to the Bill of 1968 to remove altogether the right
of appeal to the Privy Council from the High Court. The
amendment was not accepted. What I have referred to as the
second Bill completes the process that the Australian Labor
Party would have liked to have seen completed when legislation
was before the Parliament five years ago.
Mr Speaker, I believe that by passing this Bill
the Australian Parliament will demonstrate its view that
the Australian courts can and should exercise the final
judicial authority in this land. We all know that in the
High Court we have a Bench whose learning and authority is
respected wherever English law runs.
I commend the two Bills to the House.