Your telegram 96.  As advised in Dominions Office cable to Whiskard, No. 250 , would be undesirable to submit Latham's name until Japanese answer as to appointment of Australian Minister received. Even if this received immediately amendment of judiciary Act could not be submitted to Parliament next week as Foreign Office advise me that agreement, which carried out most formally by Japanese and involves the approval of the Emperor, could not be obtained under 10 days to a fortnight as minimum.
This at first sight annoying but on consideration possibly not unmixed evil in view of difficult problem raised in your telegram No. 99.  Have been unable to extract from the Foreign Office anything more definite than contained in unhelpful cable No. 265.
 You therefore must take your own decision. For what it is worth following is how I see the position.
If Japan agrees on conditions as suggested in cable to Whiskard No. 260  nothing doing as this would be intolerable dictation which we could not entertain.
If Japan agrees unconditionally, you can either (a) finalise the matter by submitting Latham's name, (b) hold up further action on the grounds that legislation necessary before proceeding with appointment and Parliament not sitting.
With regard to (a), with Curtin's  agreement, which would no doubt be forthcoming, it should be possible to safeguard Latham's position by retrospective legislation or some other device your ingenuity could suggest.
With regard to (b) having made the gesture to Japan you could delay implementing it till you saw how the position developing. In such circumstances you would be fully justified in postponing decision with regard to Chungking. This delay would enable you to avoid giving impression of siding with Japanese (Dominions Office telegram No. 265) if you appoint only to Tokyo, irritating Japanese stirring their resentment and nullifying favourable effect of decision in regard to Tokyo (your telegram No. 330 to Dominions Office ) if you appoint to Chungking as well.
In view of impossibility of forecasting developments in the Far East during the next two months, appears to me wisest course is to pursue delaying tactics.