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 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 Sleiman is a freelance writer and journalist based in Canberra.