High Court ruling on 'Palace letters' case paves way to learn more about The Dismissal - and our Constitution

 

National Archives of Australia

Anne Twomey, University of Sydney
 

The High Court has ruled that Sir John Kerr’s correspondence with the queen comprises “Commonwealth records”. This means access to them is now in Australian hands and can no longer be vetoed by the private secretary to the queen.
This correspondence, which includes Kerr’s briefings to the queen on the political crisis prior to the dismissal of the Whitlam government on November 11 1975, and his explanation to her afterwards of why he exercised this power, have so far been kept from public view.

---

Read more: Explainer: what is the 'palace letters' case and what will the High Court consider?

---

The High Court’s decision opens the possibility that we will finally see the last pieces of factual evidence about The Dismissal – revealing the concerns and reasoning of the governor-general, as events occurred, without the gloss of hindsight.
It could even allow this festering wound in our political history to be healed, once all the information has been revealed. But it depends now on what the National Archives does next.

How were these letters treated until now?

Until now, the National Archives has claimed all correspondence it holds between governors-general and the queen, even when written in their official capacities, is “personal” and not a “Commonwealth record”.

This means there was no legal obligation on the National Archives to provide public access to these letters. Instead, the National Archives had stated it could only release these documents in accordance with the conditions placed on them by the person who lodged them with the National Archives.
But it let those conditions be changed on the instructions of the queen in 1991 so that her private secretary and the secretary of the governor-general held a veto over the release of any such correspondence.

---

Read more: Australian politics explainer: Gough Whitlam's dismissal as prime minister

---

Professor Jenny Hocking. AAP/James Ross

In the case brought by academic Jenny Hocking against the National Archives, the High Court held by a majority of six to one that the letters between Sir John Kerr and the queen were created, received and held as institutional documents by the “official establishment of the Governor-General” before being transferred to the National Archives by the official secretary to the governor-general in his official capacity. This level of official control over them was enough to make them “Commonwealth records”, even if the governor-general still held ownership rights over them (which the majority said it did not need to decide).

In their joint judgment, Chief Justice Kiefel and Justices Bell, Gageler and Keane said they could not see how the correspondence could be described, however “loosely”, as “private or personal records of the Governor-General”.

They said it could not be supposed that Kerr could have taken the correspondence from the governor-general’s official establishment and destroyed or sold it.

Justice Gordon thought even if Kerr did have property rights in the original documents, he gave up any claim to them when they were deposited with the National Archives. Justice Edelman agreed the correspondence between the governor-general and the queen was “created or received officially and kept institutionally”.

Only Justice Nettle concluded these letters were personal communications between Kerr and the Queen, and were not Commonwealth records.

Does this mean we get to see the letters now?

The court did not order that the letters be publicly released. Instead, it ordered the director-general of the National Archives reconsider Jenny Hocking’s request for access to the correspondence held by the archives, treating them as Commonwealth records.

Section 31 of the Archives Act 1983 requires the National Archives to give public access to any Commonwealth record that it holds that is within the open access period and is not an “exempt record”.

The correspondence between Kerr and the queen has been in the “open access period” since 2006/2007. The only question that remains is whether the director-general will now claim that the correspondence is comprised of “exempt records”.

Section 33 of the Act lists a number of exemptions. These include documents that could reasonably be expected to cause damage to international relations, or where disclosure of matters in the record would constitute a breach of confidence.

The damage that might be caused by the release of documents necessarily diminishes over time. So even if these exemptions are claimed, consideration would have to be given to whether they remain applicable, given the age of the documents.

The director-general of the National Archives responded to the High Court’s decision by stating the “National Archives is a pro-disclosure organisation” that operates on the basis of making records publicly available “unless there is a specific and compelling need to withhold it”.
It will be interesting to see what “compelling” needs it might identify.

Are there any wider implications of the decision?

The High Court’s decision will also affect the release of correspondence by other governors-general. The release of Lord Casey’s correspondence with the Queen was recently blocked by Buckingham Palace, which stated it would refuse access to any correspondence with the queen until at least five years after her death, and then only if the private secretary to the new monarch agrees. That veto has now been destroyed by the High Court.

So not only is Kerr’s correspondence with the queen liable to be opened, but also the correspondence by all other governors-general with the queen, when it is in the “open access period” and subject to any exemption.

That may mean we get a better idea of how the roles of the governor-general and the queen operate under our Constitution, which would be a good thing.


Anne Twomey, Professor of Constitutional Law, University of Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.

New look federalism: National Federation Reform Council, National Cabinet.

From the Prime Minister's Statement yesterday

National Cabinet

National Cabinet has agreed to the formation of the National Federation Reform Council and the cessation of the COAG model.

National Cabinet has worked effectively to respond to COVID-19. The new National Federation Reform Council agreed to by Premiers, Chief Ministers and the Prime Minister, will change the way the Commonwealth and states and territories effectively and productively work together to address new areas of reform.

The National Cabinet will be driven by an initial single agenda - to create jobs. A job making agenda.
By any measure, National Cabinet has proven to be a much more effective body for taking decisions in the national interest than the COAG structure.

At the centre of the National Federation Reform Council will be National Cabinet.
National Cabinet will continue to meet regularly and will be briefed directly by experts such as the Australian Health Protection Principal Committee.

Initial reform areas will be agreed by National Cabinet.

During the COVID-19 period, National Cabinet will continue to meet every two weeks. In the future, these meetings will take place once a month.

The Council on Federal Financial Relations (CFFR), which is essentially a meeting of all Treasurers, will report to National Cabinet. CFFR will take responsibility for all funding agreements including National Partnership Agreements.

Important taskforces will continue in areas that are critical to our National Agenda. The taskforce on women’s safety and domestic violence will continue their critical work, as will the Indigenous affairs taskforce with a particular focus on Closing the Gap.

Once a year, National Cabinet, CFFR and the Australian Local Government Association will meet in person as the National Federation Reform Council with a focus on priority national federation issues such as Closing the Gap and Women’s Safety.

This new model will streamline processes and avoid endless meetings that do not result in action. This is a congestion busting process that will get things done with a single focus on creating jobs.
This is an exciting new agenda for our federation and is about rebuilding confidence to get Australians back into work.

Further details of the National Federation Reform Council and consolidation and reset of the Ministerial Forums and Ministerial Regulatory Councils will be reviewed by National Cabinet.

Transparency during the crisis, business as usual?

The full extent of how the COVID 19 crisis is impacting on transparency and accountability at the federal or state level is unknowable to us outsiders-maybe information commissioners could have a look and tell us, warts and all ? But what you can glean from the public record suggests the longstanding attachment, in Canberra certainly, to secrecy, confidentiality and guarding the barricades against the inquisitive and interested is hard to shake.
Particularly when you try to get close to the cabinet door.

The Senate- No date-Executive Privilege?

The  ongoing hearings of the COVID 19 Senate select committee has seen parliamentarians dig deep with some warranted success given Parliament's role and responsibility to oversight executive government, and the response to the pandemic.

However those appearing before or providing information to the committee are sticking to the usual ground rule that if information asked for or sought gives rise to something close to a plausible reason to keep the shades drawn, go for it.

When Senator Katy Gallagher Chair of the committee on 13 May asked officers from the Department of Prime Minister "the date on which Professor Murphy (Chief Medical Officer) first briefed the Cabinet about COVID-19?" the question was taken on notice.On the same day PMC came back with the Answer (No 30)

"Revealing information about when the Chief Medical Officer, Professor Brendan Murphy, first briefed the Cabinet on the coronavirus pandemic would or could reasonably be expected to disclose the deliberations of the Cabinet. 

It is a longstanding practice not to disclose information about the operation and business of the Cabinet and its committees, including when a matter went to the Cabinet, who attended, and what form of submission was provided, as to do so could potentially reveal the deliberations of the Cabinet, which are confidential. 

The deliberations of the Cabinet and its committees should be conducted in confidence so that the freedom of those deliberations can be preserved. It is not in the public interest to disclose information about the Cabinet’s deliberations as it may impact on the Government’s ability to receive confidential information and make appropriate decisions impacting on the Australian community. 

This approach has been used consistently for several years and is consistent with the approach taken by previous Secretaries."

(All the date would reveal was that the cabinet met that day and heard words from Professor Murphy's lips. It wouldn't reveal what he said, what discussion if any ensued and who said what, what if any decisions were taken, but that a deliberation had taken place.

Head things off at the pass

Something similar occurred at a hearing on 26 May when Senator Gallagher asked Professor Murphy:

"I presume you've been briefing the National Security Committee of cabinet on those improvements in the modelling of the health data over the last eight weeks.

Prof. Murphy : The national cabinet has been briefed on those and the National Security Committee less so. At the national cabinet, the premiers and the Prime Minister generally get an update on the modelling at every meeting.

CHAIR: What about the federal cabinet?

A simple Yes, maybe even a No might have done it but Acting Secretary of the Department of Health (seconded from her job as Deputy Secretary of Department of Prime Minister and Cabinet was up to the mark:

 

Ms Edwards : Of course, Professor Murphy is not really at liberty to discuss what advice he's given to cabinet.

Leading to:

CHAIR: I'm talking about the modelling and whether or not that's been provided. I'm not asking what the modelling is and what it's saying and what might not have been released. I am asking whether the Chief Medical Officer has provided modelling to the NSC.

.....

Ms Edwards : Very comprehensive advice is provided to government at all stages through the ordinary processes, including the confidential cabinet processes.

CHAIR: But you won't confirm whether the modelling has been provided to the cabinet?

Ms Edwards : In accordance with the standard practice, we don't provide detail of what advice has been provided to cabinet in confidence.

CHAIR: No, the committee hasn't accepted that, and we have repeatedly made it known to witnesses that if you are going to deny an answer to questions then you must indicate whether you are going to seek public interest immunity. You need to explain the public harm that comes from letting us know whether the cabinet has received modelling information as the health curve has been flattened. That is the question. If you think that's a harm to public interest then refer it to your minister and go through that process, Ms Edwards. I would think it's a fairly straightforward question for this committee to ask.

Ms Edwards : We'll refer to the minister whether he wants to claim public interest immunity in relation to what's been provided to cabinet.

CHAIR: About whether they're doing their job properly.

....

CHAIR: My question is whether the NSC of the federal cabinet have been briefed on the modelling as the curve has flattened. That is my question. If you're unable to answer that simple question today and it needs to be referred to your minister, please indicate if that's the case.

Ms Edwards : That's what we'll have to do.

CHAIR: Right. It really makes the scrutiny role of this committee an absolute joke. ....

Give a little-pass the parcel 

Questions about briefs and modeling were also asked of Treasury Secretary Dr Steven Kennedy.  As the Sydney Morning Herald reported in April Treasury released parts of this ministerial brief dated 30 January on economic impacts-before the full scale of the damage to the economy was realised. 
It has published and updates the Government Economic Response. 
The Senate committee asked for more. Dr Kennedy in a letter of 19 May provided a copy of another January ministerial brief providing background on the SARS epidemic of 2003 and commentary about its current relevance, and referred to some publicly available documents, but said other documents requested were prepared for cabinet deliberations and were a matter for Department of Prime Minister and Cabinet. 

The National Cabinet

Brewing away in the background here is the significance in terms of transparency of the claim put out there most notably by PMC Secretary Phillip Gaetjens at that hearing on 13 May that the National Cabinet is part of the Federal government governance structure, indeed part of the federal cabinet. Suffice here to say Mr Gaetjens was clear and definite in his evidence:

Senator PATRICK: In relation to the national cabinet, I heard you saying at the start—and I apologise; I came in late—that, in effect, it is part of the federal cabinet?

Mr Gaetjens : Yes.

It's very doubtful in my opinion.

More on that in the next post.

FOI- we're hard pushed

On the Freedom of Information front, delays and requests for extra time are the order of the day and many/most are understandable. However from what's visible through FOI applications using the Right to Know platform "complex or voluminous" is getting quite a workover.

Just hard

On access to documents not a lot in the public domain at present.

PMC dealt with a Freedom of Information request from Senator Rex Patrick for the early briefings provided to Prime Minister Morrison on the beginning of the coronavirus outbreak by giving nothing away.

As Senator Patrick recounts:

"I was hopeful that the Department would release some useful information that would shed light on the Government’s early assessments and responses in January. A high level of transparency is essential if we are to learn all the lessons we can from the experience of this terrible pandemic."
However the Department of Prime Minister & Cabinet has refused access to all of the requested briefings given to the Prime Minister at the beginning of the crisis.
"The Government has piled on every exemption category it can think of – international relations, national security, internal government deliberations and Cabinet business – to withhold every word of five briefings provided to the Prime Minister between the first and thirty first of January. This was the critical time in which the Government first received reports of the coronavirus outbreak, and first learned of human-to human transmission, but decided to only screen flights from Wuhan and hand leaflets to passengers arriving from China."
"The Department of the Prime Minister and Cabinet’s blanket refusal to release early briefings to the Prime Minister at the beginning of the COVID-19 crisis is deeply disappointing and quite at odds with the Government’s claimed commitment to transparency," said Senator Patrick.

Ariel Bogle online technology reporter at the ABC also struck out, giving this cryptic account on Twitter 

"I've been refused FOI access to the government's privacy impact assessments for the coronavirus WhatsApp channel & info app. Seems odd given the one for COVIDSafe was released for public confidence. (They say it would inhibit frank advice from legal advisers, among other things)"

Senator Patrick is out there again at the moment this time flagging 'cabinet in confidence' may stand between the public right to know and Treasury modeling that led to the $60 billion Job Keeper bungle, calling  

" ..on Treasurer Josh Frydenberg to immediately release Treasury JobKeeper modelling after the Government committed the biggest accounting error in Australia’s public administration history."Treasury modelling may well have caused Government to suffer from a bad case of confirmation bias," said Senator Patrick.Senator Patrick pressed Treasury Secretary Dr Kennedy last Thursday for the modelling to be released to the Senate’s COVID-19 oversight committee. "I put to you that all the modelling your department does is done on the public coin and for public purpose, and the public has a right to see what it is that your department has done. I think it is disrespectful for the Treasury to withhold that information from the public.""If there wasn’t enough reason last Thursday, there’s 60 billion more reasons now."Dr Kennedy hinted a cabinet-in-confidence claim would be used. "I think most Australians are getting sick and tired of the Government sprinkling ‘Cabinet fairy dust’ on just about anything that might prove embarrassing to Government," said Senator Patrick.

Sure to be plenty more of this in the pipeline.

Privacy Commissioner and OAIC expected to do more on the smell of the same oily rag?

The Office of Australian Information Commissioner was asked again to do more with no additional resources, something it should be used to by now after six years of practice. That's since since the Abbott government had an unsuccessful crack at abolishing the Commission and successive governments in the years since kept the lid closed or just slightly ajar (with some additional privacy resources in last year's budget to go with earlier expansions of its role) on the moneybox. 

But wait-despite no one on the government side deviating from the script during debate the Attorney General told Shadow Attorney General Dreyfus separately his department is checking with the OAIC to ensure they have adequate resources.

(Perhaps too much to hope that the check might also dig into the issue of stretched OAIC Freedom of Information resources that include one commissioner instead of three as legislated, and to deal with something like a 90% increase in FOI review applications over the last four years that now form a long,long queue, and non existent resources for Information Policy functions.)

The OAIC issue arose as the Privacy Amendment (Public Health Contact Information) Bill 2020 sailed through both houses when Parliament sat this week.

The bill, as passed by the House of Representatives on Wednesday, passed the Senate this morning without amendment. 

Labor in the Senate did not support amendments put by the Greens and Centre Alliance citing the urgency of getting the legislation in place as quickly as possible.

Speakers in both houses drew attention to the extra responsibilities the bill places on the Privacy Commissioner and her office the OAIC, particularly this exchange in a committee hearing last week 

Senator Keneally: in light of the new and important oversight responsibilities that the draft bill would confer on the Privacy Commissioner, will the government be providing the Privacy Commissioner with any additional resources?

Ms Chidgey (Attorney General’s Department): There's no intention to provide additional resources. The Privacy Commissioner is able to undertake this work within their existing resources.

Shadow Attorney General Mark Dreyfus unsuccessfully moved a motion in the House that included a call call on the government to "provide additional funding to the (OAIC) and appoint a standalone privacy commissioner “to ensure that the commissioner is able to properly perform the important oversight functions provided for in this bill.” 

He spoke to this part of the motion thus:

"Another issue that I raised with the Attorney-General during discussion about this bill relates to the funding of the Office of the Australian Information Commissioner. In short, I do not think that the evidence of the Attorney-General's Department at last Wednesday's COVID-19 Senate select committee hearing that the commissioner requires no additional resources to fulfil her new oversight responsibilities is credible.In fact, it is incredible. You do not have to take my word for it. Just last October, the Information Commissioner told Senate estimates that her office is already underresourced.The Attorney-General has advised me that his department is engaging with the commissioner to ensure that she has the necessary resources to perform the important oversight functions provided for in this bill, the Privacy Amendment (Public Health Contact Information) Bill 2020. While I welcome that engagement and look forward to receiving an update over coming days or weeks, there is no question in my mind that additional funding is urgently required. The only question is how much.
It is also important to remember that for years the government has refused to appoint a standalone information commissioner, a standalone freedom of information commissioner or a standalone privacy commissioner. Instead, one person currently occupies all three of these important and demanding roles. As I've said repeatedly, this is unacceptable. In light of the new responsibilities that this bill would confer on the Office of the Australian Information Commissioner, now more than ever the government needs to appoint a standalone, dedicated privacy commissioner. The appointment of a full-time and properly resourced privacy commissioner rather than a commissioner forced to split her time between three different and demanding roles would make a further valuable contribution to building public confidence in the COVIDSafe app. It should not take a public health crisis for the government to show that it takes seriously the privacy of Australians.

Additional responsibilities for the Privacy Commissioner arise because as explained in the second reading speech:

• The bill ensures COVIDSafe app data must  be treated as 'personal information' under the Privacy Act, by virtue of section 94Q. This automatically applies a range of existing Privacy Act protections to COVIDSafe app data, including privacy policy, notification, and security obligations. 

• The commissioner will be able to undertake a formal assessment of whether an entity subject to the Privacy Act, or a state or territory health authority handling COVIDSafe app data, is complying with the requirements in this bill. And to deal with complaints.

• The commissioner will also have discretion to refer matters that may constitute a breach of a state or territory privacy law to the responsible state or territory privacy regulator. 

•  The commissioner will provide regular public reports on the performance and exercise of her new powers and functions under part VIIIA.

• The bill applies the existing Notifiable Data Breaches Scheme for which the commissioner is responsible to COVIDSafe app data under section 94S. The bill requires the administrator of the National COVIDSafe Data Store, or a state or territory health authority handling COVIDSafe app data, to notify the commissioner of any data breach involving COVIDSafe app data. The commissioner will then have the power to require the breach to be notified to affected individuals.The notification requirement would be automatic in the event of a data breach, which is much stronger than the protection in the Privacy Act's existing data breach notification requirements. 

Somewhere in there in there is also a COVIDSafe Privacy Advisory Committee, including the various Privacy Commissioners, to provide collective advice to the National Cabinet and the public regarding the operation of COVIDSafe.

The Commissioner welcomed changes to the act-no mention of the resources issue

Should be a snack really.