The Prime Court docket has dominated that Sir John Kerr’s correspondence with the queen incorporates “Commonwealth data”. This implies get right of entry to to them is now in Australian palms and will not be vetoed by way of the personal secretary to the queen.
This correspondence, which contains Kerr’s briefings to the queen at the political disaster previous to the dismissal of the Whitlam executive on November 11 1975, and his rationalization to her afterwards of why he exercised this energy, have to this point been saved from public view.
The Prime Court docket’s resolution opens the likelihood that we can in the end see the ultimate items of factual proof about The Dismissal – revealing the troubles and reasoning of the governor-general, as occasions took place, with out the gloss of hindsight.
It might even permit this festering wound in our political historical past to be healed, as soon as all of the knowledge has been printed. But it surely is dependent now on what the Nationwide Archives does subsequent.
How have been those letters handled till now?
Till now, the Nationwide Archives has claimed all correspondence it holds between governors-general and the queen, even if written of their authentic capacities, is “private” and now not a “Commonwealth file”.
This implies there used to be no felony legal responsibility at the Nationwide Archives to supply public get right of entry to to those letters. As an alternative, the Nationwide Archives had mentioned it might simplest liberate those paperwork in line with the stipulations put on them by way of the one who lodged them with the Nationwide Archives.
But it surely let the ones stipulations be modified at the directions of the queen in 1991 in order that her non-public secretary and the secretary of the governor-general held a veto over the discharge of this sort of correspondence.
Within the case introduced by way of educational Jenny Hocking in opposition to the Nationwide Archives, the Prime Court docket held by way of a majority of six to 1 that the letters between Sir John Kerr and the queen have been created, gained and held as institutional paperwork by way of the “authentic established order of the Governor-Basic” earlier than being transferred to the Nationwide Archives by way of the authentic secretary to the governor-general in his authentic capability. This stage of authentic keep watch over over them used to be sufficient to cause them to “Commonwealth data”, despite the fact that the governor-general nonetheless held possession rights over them (which the bulk mentioned it didn’t want to make a decision).
Of their joint judgment, Leader Justice Kiefel and Justices Bell, Gageler and Keane mentioned they may now not see how the correspondence might be described, then again “loosely”, as “non-public or private data of the Governor-Basic”.
They mentioned it might now not be intended that Kerr may have taken the correspondence from the governor-general’s authentic established order and destroyed or bought it.
Justice Gordon concept despite the fact that Kerr did have assets rights within the authentic paperwork, he gave up any declare to them after they have been deposited with the Nationwide Archives. Justice Edelman agreed the correspondence between the governor-general and the queen used to be “created or gained formally and saved institutionally”.
Simplest Justice Nettle concluded those letters have been private communications between Kerr and the Queen, and weren’t Commonwealth data.
Does this imply we get to peer the letters now?
The courtroom didn’t order that the letters be publicly launched. As an alternative, it ordered the director-general of the Nationwide Archives rethink Jenny Hocking’s request for get right of entry to to the correspondence held by way of the archives, treating them as Commonwealth data.
Segment 31 of the Archives Act 1983 calls for the Nationwide Archives to offer public get right of entry to to any Commonwealth file that it holds this is throughout the open get right of entry to duration and isn’t an “exempt file”.
The correspondence between Kerr and the queen has been within the “open get right of entry to duration” since 2006/2007. The one query that is still is whether or not the director-general will now declare that the correspondence is constituted of “exempt data”.
Segment 33 of the Act lists numerous exemptions. Those come with paperwork that would fairly be anticipated to purpose harm to global members of the family, or the place disclosure of issues within the file would represent a breach of self belief.
The wear that may well be brought about by way of the discharge of paperwork essentially diminishes through the years. So despite the fact that those exemptions are claimed, attention would must be given to whether or not they stay acceptable, given the age of the paperwork.
The director-general of the Nationwide Archives spoke back to the Prime Court docket’s resolution by way of mentioning the
“Nationwide Archives is a pro-disclosure organisation” that operates at the foundation of constructing data publicly to be had “except there’s a particular and compelling want to withhold it”.
It’s going to be fascinating to peer what “compelling” wishes it will determine.
Are there any wider implications of the verdict?
The Prime Court docket’s resolution may even impact the discharge of correspondence by way of different governors-general. The discharge of Lord Casey’s correspondence with the Queen used to be not too long ago blocked by way of Buckingham Palace, which mentioned it will refuse get right of entry to to any correspondence with the queen till no less than 5 years after her loss of life, after which provided that the personal secretary to the brand new monarch is of the same opinion. That veto has now been destroyed by way of the Prime Court docket.
So now not simplest is Kerr’s correspondence with the queen prone to be opened, but in addition the correspondence by way of all different governors-general with the queen, when it’s within the “open get right of entry to duration” and matter to any exemption.
That can imply we get a greater concept of ways the jobs of the governor-general and the queen perform beneath our Charter, which might be a just right factor.