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Wednesday, August 29, 2012

What thoughts Kerr and the Queen exchanged still safely locked away in Royal Household

AFR Michael Fitzjames
The dismissal of the Whitlam government in 1975 is back in the news with Paul Kelly in The Australian (paywall) today describing new material in Jenny Hocking's biography about the secret talks involving then governor-general Kerr and judges of the High Court as "significant and stunning."

Kelly concludes that all those years ago
"our institutions were undermined in a joint Fraser-Kerr project that deposed the Whitlam government via secret discussions and misuse of the Reserve Powers." Of course there continues to be a range of views about powers.

But as to secret discussions, thirty years is a long time to wait for some of the detail. The wait will be even longer for additional insight into communication between Government House and Buckingham Palace.

As Professor Anne Twomey wrote in the Australian Financial Review earlier this year:
"correspondence between the Queen and her governors-general is regularly packed up (in Canberra) and sent to be archived at Windsor Castle so that neither end of the correspondence is accessible through freedom of information. For example, any correspondence between the governor-general and the Queen about the dismissal of the Whitlam government would not be available in Australian archives. Instead, it would be locked away in Windsor Castle.

The only chink in this armour of secrecy occurs when the Queen’s private secretary, or a governor-general, corresponds with a government official, revealing the actions or wishes of her majesty. For example, while we might not have copies of correspondence between John Kerr and the Queen, we know from British government records that in October,1975 Kerr asked the British high commissioner what sort of disciplinary action would be taken against Queensland governor (from 1972 to 1977), Colin Hannah, who had embroiled himself in political controversy by criticising the Whitlam government. Kerr, who was contemplating embroiling himself in far greater controversy by dismissing the Whitlam government, wanted to know what sort of penalty might be applied. He asked whether British ministers would pressure Hannah into resigning. Kerr was told that they would not (although, in fact, they fully intended to engineer Hannah’s “resignation”). UK records also show that on November 4,1975, Kerr was advising the palace that the most appropriate way of dealing with Hannah was by refusing to extend his term of office. 

So Kerr went into the events of November 11, 1975 believing that the worst penalty he would face for his actions, at the British end, was the failure to extend his term of office. His actions in dismissing the Whitlam government also had the unexpected effect of saving Hannah. A British official wrote to the Queen’s private secretary noting that the Queen would be involved in a major political row if she dismissed Hannah for stepping down from his pedestal into the political arena, when the governor-general had done so in a far more spectacular fashion. So Hannah was instead “rebuked” and the extension of his term refused, as Kerr had suggested.

These British documents, which shed partial light on what occurred, only became accessible because they were held by the government rather than the Royal Household. They were therefore subject to the 30-year rule (now reduced to 20 years) and freedom of information rules.

Even this limited mode of access, however, has now been cut off in the UK. In 2011, a new British law came into effect so that any government documents recording communications with the Queen, the heir to the throne and the second in line to the throne, or anyone acting on their behalf, are absolutely prohibited from release for a minimum of 20 years from the time they are made, and then for the continuing lifetime of the relevant member of the royal family, plus an extra five years after their death. 

No public interest test applies, nor are there any exceptions or qualifications. For example, if Prince William were to live a long life, communications with him today might not be released until around 2080. Equally, any government communications with the Queen that are made today cannot be known for at least 20 years, and then not until five years after her death.

Of course all this apart from the current situation here where a document held by Government House is not subject to the FOI act unless it relates to matters of an administrative nature, interpreted by Deputy President Hack in the AAT earlier this year to mean that any document that relates to any substantive functions of the Governor-General is outside scope. That decision is under appeal to be heard by the Full Court of the Federal Court commencing 23 November, with as I understand, Tom Brennan for the applicant/appellant.

One thing we can be sure of is that what goes on behind the scenes at the highest level in Canberra and London remains firmly behind doors closed for a long, long time.

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