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High Court decision on palace letters

  • 02 June 2020
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.

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