DAVID SOLOMON. How the Queen and Kerr were blind-sided

Jun 5, 2020

It was both fortunate and fortuitous. The scheming of the Queen and Sir John Kerr to keep their correspondence secret was defeated not on the merits but by accident and thanks to legislation that came into being long after their arrangements were put in place.

And it happened because of the persistence of Professor Jenny Hocking in trying to access the so-called Palace letters. She sought access to the papers under the provisions of the Archives Act, was refused, tried to overturn that decision in the Federal Court, lost, appealed in the Federal Court, lost 2-1, won her application for special leave to appeal to the High Court, and last week won her appeal, with six Justices in her favour and only one against.

But what the High Court decided in this case had little to do with the fundamental concepts and supposed conventions that lawyers for Professor Hocking and for the Commonwealth argued in both the Federal Court and the High Court. For the four of the majority Justices in the High Court who wrote a joint judgment – Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler and Patrick Keane – the case was resolved simply by interpreting the words of the Archives Act. The appeal turned ‘on the construction and application of the elaborate statutory definition of “Commonwealth record”.’ It had nothing to do with who owned the letters that were exchanged between the Queen and the Governor-General, or the nature of any secrecy convention supposedly governing correspondence between them.

It turns out that the Federal Court judge who rejected Professor Hocking’s application for judicial review of the decision by the Director-General of the Archives that the copies of the Royal/Vice Regal correspondence were not ‘Commonwealth records’ and the three Federal Court judges who refused her appeal, didn’t even take into account the issues that persuaded the High Court that the papers were indeed Commonwealth records.

Remarkably – and this demonstrates just far the decision of the High Court majority diverged from what was argued in the Federal Court – the facts to which the High Court applied its interpretation of the Archives Act were not even brought to the attention of the Federal Court.

Those facts all concerned the way in which the papers were taken into the custody of Mr (later Sir) David Smith, the Official Secretary to the Governor-General, secured by him, and later deposited with the Archives. Crucially, Smith held them and disposed of them in his official capacity. That meant they were Commonwealth records, notwithstanding the fact that they were deposited with a letter that asserted the package contained ‘the personal and confidential correspondence’ between the Governor-General and the Queen and ‘In accordance with The Queen’s wishes and Sir John Kerr’s instructions, these papers are to remain closed until 60 years after the end of his appointment as Governor-General, i.e. until after 8 December 2037.’

It was those conditions that were meant to restrict the release of the Palace letters that had most concerned the Federal Court.

From late 1976 Kerr, while still Governor-General, had been corresponding with the Queen’s private secretary about the way in which the letters should be disposed of. Later both the Prime Minister, Malcolm Fraser, and the then director-general of Archives also contributed to the final arrangements that were made, resulting in the delivery of the package and its accompanying message restricting the release of the documents for at least 60 years (later, cut by the Queen, to 50 years, but with a proviso that the term could be further extended by the then monarch’s private secretary).

In October 1977 Prime Minister Fraser wrote to the Governor-General specifically dealing with the correspondence between the Queen and the Governor-General. Referring to the Archives Bill at that time being considered by the Senate, Mr Fraser said it provided, ‘that Australian Archives may enter into arrangements with a Governor-General to take custody of records under access rules which a Governor-General may lay down. Royal Household records, including The Queen’s correspondence with Governors-General, are protected in Britain under special archives rules. I am sure you will agree that there should be no lesser protection in Australia.’

Kerr proceeded on that basis, but from there on it all went horribly wrong for those who wanted to keep the correspondence secret.

The problem was that the Archives Bill referred to by Fraser wasn’t passed in 1977, or in 1981 when it was reintroduced into the Parliament. And when it was finally passed in 1993 it was very different. The main problem (for Kerr, the Queen and the rest) was that the definition of ‘Commonwealth records’ was expanded so as to catch records held by the ‘official establishment of the Governor-General’ and any conditions attached to the handover of such records would have no effect, being replaced by the ordinary disclosure rules applying to Commonwealth records. And these provisions were retrospective – the conditions associated with the handover of the letters in 1977 ceased to have any effect.

The majority decision acknowledged that the conclusion that the correspondence was ‘a Commonwealth record might run counter to the current understanding of the Private Secretary and to the present expectations of Her Majesty about the timing of public access to it’.

It might also be thought ‘to run counter to the expectations of Mr Smith as Official Secretary and of Professor Neale as Director- General of the Australian Archives in entering into the arrangement under which the correspondence was deposited, of Mr Fraser as Prime Minister in suggesting it, and of Sir John Kerr as retiring Governor-General in acquiescing in it.’

Blame it all on the changes to the Archives Act, and its retrospective effect on the arrangement.

Because the majority justices decided the case on a purely statutory interpretation point, they did not explore the more interesting questions that arise about democratic accountability and the role of the Crown and the Governor-General. Those issues are sure to arise when we (eventually) see what Kerr and the Queen and to say to one another about the dismissal of the Whitlam Government – particularly before it happened.

But there was one further important finding in the joint majority decision that could/should influence that debate. The majority High Court Justices said, ‘With respect to the majority in the Full Court [of the Federal Court], we cannot see how the correspondence could appropriately be described, however “loosely”, as “private or personal records of the Governor-General” even allowing for the ambiguity of the description of “private or personal”.’

How could anyone who believes Australia is an independent country not subject in any way to what the Queen wants, think otherwise

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