High Court decision on palace letters

19 Comments

 

One would hesitate to use the words ‘regime change’ in Australian politics, after all Australia is a democracy. Yet the dismissal of Gough Whitlam in the 1970s is one of those low points in Australian politics, a controversy that has yielded conspiracies of foreign interference in Australian domestic affairs.

Photo by Liam Truong on Unsplash

Will former Governor General John Kerr’s correspondence with the Queen shed light on what really happened in 1975? It may very well, and historians like Jenny Hocking were willing to challenge the National Archives of Australia’s refusal to access such records in High Court. As it stands six of the seven High Court judges decided in favour of Professor Hocking, but they did so on their own terms, in most part rejecting both her legal team’s arguments and the respondent’s counterarguments.

So, what did the High Court say?

Four of the judges, in a joint decision, said the question posed by both parties as to whether the letters were ‘owned’ by Kerr or the Commonwealth was irrelevant, because the inquiry should have focussed on whether the letters were the property of the official establishment of the Governor General. Essentially, they were, because it was David Smith, in his official capacity as Secretary of the Governor General, who deposited those letters with the National Archive of Australia and which consequently made those letters ‘Commonwealth records’ rather than personal ones. So, Kerr or his estate could still technically own the letters notwithstanding.

Yet the content of such letters is not publicly known, and there is no indication that the High Court justices were privy to their contents. It is reasonable to expect that some of those Commonwealth records may contain personal matters. In fact, one of the majority judges, in a single judgement, went so far as to say that it would remain the remit of the Director General of the national archives to make that distinction under the Archives Act 1983. This is the very same act that was said to have effectively annulled the intention of both Kerr and the Queen’s private secretary that such records would remain ‘embargoed’ for 60 years, that is until 2037.

The sole dissenting voice, Justice Nettle, pointed out that two early iterations of the Archives Act specifically excluded the office of the Governor General and that its final enactment, which oddly did include the Governor General, did not indicate an intention to include personal records, including the ‘special category’ of correspondence with the Queen.

 

'It remains to be seen how access to these records will be facilitated or regulated. There are exemptions under the Archives Act which could be triggered.'

 

In other words, the new law would just codify existing conventions, and there was a convention that correspondence between the Governor General and the Queen was invariably a personal one.

Conventions or customs play an important role in international law and can overcome legal instruments like statutes. They are especially important in societies that don’t have a verifiable written record of practices such one would find in Indigenous communities. An example in some countries where whaling has been banned, Indigenous communities still hunt them for subsistence as they have for centuries and is customary.

The majority of the court rejected that there was such an established convention, despite the records being labelled confidential. Justice Edelman said ‘there was no adequate reason’ for such a convention to exist and that the precedence on this matter was ‘thin’ and goes against the role of the Governor General as trustee of the public. In contrast the characteristic of being a ‘trustee of the public’ is not as forthcoming in presidential systems like in the US, where presidents can profit off of their administration’s records rather than holding them on trust. There is a certain irony in that realisation that becoming a republic could mean relinquishing such accountability.

It remains to be seen how access to these records will be facilitated or regulated. There are exemptions under the Archives Act which could be triggered. Records that contain information that would cause damage to the security or international relations of the Commonwealth can be exempt. There is also an exemption for records that contain information that was communicated in confidence by, or on behalf of, a foreign government to the Australian government.

It is not inconceivable that the letters under question may fall within the ambit of these exemptions, especially when their content involves a chapter in Australian political life that was mired by storms of contention and conspiracy.

The High Court judgment, which on the face of it looks like a victory for transparency and a chance to complete the historical record, may in fact turn out to be an empty one. If the government introduces new laws in response to this decision to mark such correspondence ‘special’ in some way, it is unlikely that it will operate retrospectively.

 

 

Daniel SleimanDaniel Sleiman is a freelance writer and journalist based in Canberra.

Main image: Photo by Liam Truong on Unsplash

Topic tags: Daniel Sleiman, High Court, John Kerr, Gough Whitlam, letters

 

 

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Existing comments

Kerr's actions as Governor-General made Australian constitutional history. He resolved a parliamentary impasse by exercising the regal 'reserve powers' and sacked the elected PM, Gough Whitlam. After that, Kerr's life was a controversy. Now, there may be an opportunity for Australians to access correspondence between Kerr and the Queen. Or maybe not. Maybe the written correspondence (if there is any) between Kerr and Malcolm Fraser would also be enlightening?
Pam | 02 June 2020


I find it difficult to see how 'an exemption for records that contain information that was communicated in confidence by, or on behalf of, a foreign government' can be relevant. Surely the idea that the Queen is the queen of Australia excludes the possibility that any correspondence with her Australian viceroy could be considered 'by or on behalf of a foreign government'.
Ginger Meggs | 02 June 2020


Not to allow the Public viewing of all the Correspondence would be a travesty. Anything relating to the Dismissal should be available including to and from the Chief Justice.
Allan Kauter | 02 June 2020


How could anyone get THAT date wrong? 11.11. 1975. Those of us who lived that day remember where we were when we got the news. Unforgettable!
Gai Smith | 02 June 2020


If the Morrison Government is silly enough to attempt to embargo the Correspondence , the conspiracy theorists will have a field day with the "cover up" of the events of November 11th, 1975. I can recall the events of that day like it was yesterday . I was a Public Servant and as was my practice had a transistor radio in my Office. I was listening to the Parliamentary broadcast when it was interrupted by a Flash News of the dismissal. All of us including our Supervisor walked off the job , despite a warning of disciplinary action from the Departmental Head. (not implemented). In my mind it was a bloodless coup, instigated by the C.I.A.as the USA distrusted Whitlam intensely.
Gavin O'Brien | 02 June 2020


It shouldn't be forgotten that the voting Australian public who lived with the Whitlam government over the previous three years and witnessed the dismissal had their chance to comment in the general election that followed. That commentary was a landslide dismissal of the Whitlam government in favour of the opposition. One thing that marks Australia's compulsory voting system is that the voting public don't often get it wrong. Look what they did to Howard and Abbott - both ballot box assassinations that the country needed for its future well being!!!! The same public overwhelmingly elected the Whitlam government with great hope for the future - it was a great pity that the newly elected change in Australian politics of the time proved to be such a failure with is jack-booting approach to long established protocols, conventions and procedural proprieties.
john frawley | 03 June 2020


It would be relevant to ask if Daniel Sleiman, who writes well, is a constitutional lawyer or has a background in political science. When he states: 'There is a certain irony in that realisation that becoming a republic could mean relinquishing such accountability', it really depends on what model of republic we introduce, since the Presidential system I favour would simply make a future Australian Head of State a non-interfering figurehead and the real political power, as it ought to in a democracy, would properly lie in the hands of the leader of the party that has gained the support of the majority of the electorate, and its leader, the PM. Since Australia has a preferential voting system for its Lower House, and has very carefully ensured that its Upper House holds the Lower House to policy account in every way that is democratically possible, Simon's assumption that a future Australian presidency would mirror the US model is one-sided, as is the conservative tone of his article. Bring on the correspondence, I say, and - in purely metaphorical terms, of course - to the chopping block should the Queen and her heirs, thereafter and automatically, be constitutionally and righteously despatched.
Michael Furtado | 03 June 2020


Following the strength of efforts to prevent access to the correspondence, I am curious about what the Queen of Australia discussed with her Viceroy. I hope the Government and the Archives Director-General allow Jenny Hocking and other researchers reasonable access to the documents and I can see another well-researched book coming from Jenny about it. I can’t see what is to be gained by denying access, given that 45 years have now passed since The Dismissal and most of the key participants have shuffled off. It’s hard to imagine Kerr not raising such an important decision with the Palace before acting, but there is probably no smoking gun or “gotcha” letter and we will likely be disappointed by how mundane the correspondence is. I can’t imagine Kerr writing “I want to sack Gough” and the Queen replying, “your call Jack, go for it”. Daniel’s thoughts on the importance of conventions would make ironic reading for conservatives, given the complete disregard for conventions by Fraser, Lewis, Bjelke-Petersen, Kerr, Barwick and Mason in the year leading up to 11 November (and to be fair, also by Connor which stymied Labor so much). Looking forward to what comes next.
Brett | 03 June 2020


Michael is right to remind us that the notion of a ‘republic’ is broader than the US version, which is really only a George III monarchy with an elected monarch.
Ginger Meggs | 04 June 2020


From the experience of federal government shutdowns in the US, which are always resolved within weeks, we could reasonably derive a convention that if the budget is defeated in the lower house, the government must resign, but if it’s hindered in the Senate, the resulting impasse is a matter of political negotiation, to which a governor-general, being outside politics, need not spring into pre-emptive action like a horse on steroids. The Lords cannot block a budget but that’s only fair because they are not popularly elected; in any case, taking away this ability saves the Monarch from becoming embroiled in politics, a consideration not relevant to Australia. Because the evidence is that this monarch and her advisers are canny at politics without being political, there is a high probability that the letters, when revealed, will only burden further the Kerr legacy given that no mud can stick to Barwick for advising that the GG can dismiss a PM (well, that’s the most important part of his job) or to Fraser for testing the other side. If Whitlam had informed the government leader in the Senate of his dismissal, the ALP would have blocked its own budget. https://en.wikipedia.org/wiki/Government_shutdowns_in_the_United_States https://en.wikipedia.org/wiki/Parliament_Act_1911 https://www.smh.com.au/national/the-hidden-hand-of-her-majesty-20070210-gdpg2j.html
roy chen yee | 04 June 2020


Ginger Meggs: “Michael is right to remind us that the notion of a ‘republic’ is broader than the US version, which is really only a George III monarchy with an elected monarch.” If the US was only a George III monarchy, Donald Trump would be even more entertaining than he is now. And that Wall would have been built yesterday.
roy chen yee | 06 June 2020


In my opinion no useful purpose would be served by not allowing Jenny Hocking full access to the documents in question. The Palace and the Queen's then Private Secretary, Sir William Heseltine, have always denied any knowledge by Her Majesty of, or advice to, the late Sir John Kerr on the Dismissal. There is a legal argument that Kerr exceeded his powers here.
Edward Fido | 10 June 2020


Roy: “there is a high probability that the letters, when revealed, will only burden further the Kerr legacy given that no mud can stick to Barwick for advising that the GG can dismiss a PM”. We now know Kerr took advice from Barwick and Mason. This was an inappropriate action by Kerr and the judges that breached the convention that the G-G should take advice from his Ministers. The judges could and should have told Kerr to request the Government provide an opinion from the Solicitor-General, which would have been the correct thing to do. I don’t blame the conservatives for pursuing their own advantage and pushing Whitlam to the edge. That’s politics. I don’t blame conservative judges for being anti-Labor. That’s the right of all people. But if we think conventions have any place in our democracy, then these people are to blame for disregarding such important conventions. Barwick and Mason by their actions opened themselves and the High Court to a serious conflict of interest, since the High Court potentially would have heard any legal challenge to the Dismissal. Fraser did nothing to stop two state Premiers from breaking conventions concerning the filling of Senate vacancies. He benefited from the situation. So yes Roy, even after 45 years, the mud does stick.
Brett | 14 June 2020


“This was an inappropriate action … that breached the convention that the G-G should take advice from his Ministers.” A convention is not law. It’s a custom that survives because it works. If laws can be interpreted, so can customs. Does ‘take’ mean accepting uncritically, like a puppet? Is it meaningful for a ‘commander-in-chief’ to be a puppet? The Constitution, as well, allows a GG to reject a PM-recommended bill. If you believe the governor-general should be able to dismiss a prime minister, it’s axiomatic that s/he must be able to seek such information as is necessary to do a proper job of making up his or her mind, especially if you want to move the job away from stodgy white QCs/SCs who breathe black-letter and common law to someone allegedly more ‘representative’ of the community, like a TV anchor or ex-battered wife or some such trendy icon. How is this person going to know what to do in a crisis? People consult each other just to buy movie tickets. GGs and governors represent proper process, not people. The chief justice is constitutionally independent of the Executive which can order one of its servants, the solicitor-general, not to provide advice.
roy chen yee | 16 June 2020


Of course it was inappropriate. Imagine the conservative outrage if the current G-G took advice from judges and the Opposition without informing the Government. Conventions work because they are accepted as the oil that keeps the machinery of government running smoothly and things break down when the conventions are disregarded. There are recognised and accepted proper consultation processes for the G-G to follow through the Executive Council. If Kerr had any questions, all he had to do was ask for more information. It would have been controversial for the Government not to agree. John Kerr wasn’t some “trendy icon” who knew nothing about the law (even if he was, the “trendy icon” would still have the G-G’s own staff to ask about proper processes). Kerr had been the Chief Justice of New South Wales, well aware of the conventions and the proper processes to follow. He knew exactly what he was doing. Given the power of the High Court to interpret the Constitution, including the Constitutionality of Australian laws, Kerr created a potential conflict of interest by seeking advice from the two judges. I should add it was also inappropriate for Kerr to not raise his concerns with PM Whitlam before the Dismissal, but that relates as much to the character of the G-G as it does to broken conventions.
Brett | 19 June 2020


Brett: “Of course it was inappropriate”; “This was an inappropriate action by Kerr and the judges that breached the convention that the G-G should take advice from his Ministers.” Right. The GG cannot sack his ministers unless he is advised by the people he wants to sack that he can sack them. What kind of oversight is that?
roy chen yee | 20 June 2020


Interesting interpretation Roy. It’s not what I said, but in your own way you’ve pointed to Kerr’s secrecy and deviousness in his approach to the Dismissal. Kerr clearly wanted reassurances, not advice and that’s why he acted inappropriately. The point is if the G-G was going to take advice on his power to dismiss a Government (which he knew he had), it should not have been from two High Court judges who would have had a conflict of interest if there had been a legal challenge to the Dismissal. That was wrong. He also should not have consulted the Opposition while keeping his elected Government in the dark about it. Also wrong. Advice from the Solicitor-General about Kerr’s options would have been based on the law, not politics. And yes, Kerr seriously erred in not informing his elected Government that dismissal was an option he was considering if the political dispute could not be resolved. I don’t dispute Kerr had the power to act, but he acted inappropriately in the way he used that power. Transparency and integrity of process were never a priority for Kerr or his supporters. I'm still looking forward to the release of the letters.
Brett | 25 June 2020


Brett: “two High Court judges who would have had a conflict of interest if there had been a legal challenge to the Dismissal.” What legal challenge? From whom? https://quadrant.org.au/magazine/2013/04/the-downfall-of-gough-whitlam-part-ii/ And, which judges?
roy chen yee | 15 July 2020


Barwick and Mason, Roy, Barwick and Mason, as I’m sure you already know. The Palace letters released on Bastille Day (nice timing there) show that, even if the Queen herself did not know of the Dismissal in advance, Private Secretary Charteris certainly knew it was on the cards and was another inappropriate voice for Kerr to consult. Difference this time was Kerr was discussing dismissal with a foreign official, not even an Australian voice. If the Queen was taking as strong an interest in political developments in Australia as Charteris said, then presumably Charteris would have briefed HM that dismissal was a possibility, or he was failing in his duty. As I suspected, there was no smoking gun or “gotcha” card in the Palace letters. Equally for the Kerr supporters, there is nothing in the correspondence that excuses Kerr’s inappropriate secrecy.
Brett | 22 July 2020


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