By Dr George Venturini  

At the election of 2 March 1996 Labor suffered a landslide defeat at the hand of to John Winston Howard’s Liberal–National Coalition. Keating’s personal approval rating had reached historically low levels in his second term, with opponents portraying him as elitist and out of touch. He left parliament after the election, but in retirement has remained active as a political commentator.

It is perhaps extraordinary that the Labor Party turned to Neo-liberalism as a new programme of government, but then one would understand, simply by glancing at the presence in Australia of Socialisme sans doctrines – Métin called it – Socialism without doctrine, as already seen.

It did not matter much to the new Labor leadership that neo-liberalism was first tried in Chile by the Pinochet gang which assassinated the Allende presidency and with it Chilean democracy. That ‘new way’ was coming out of the Chicago School headed by Milton Friedman. And was the first, real 9/11. If it means anything nowadays, neo-liberalism, it signifies the shifting from a moderate form of liberalism to a more radical and laissez-faire capitalist set of ideas. It is closer to the theories of Mont Pelerin Society economists Friedrich Hayek and James M. Buchanan, and it is unforgettably connected with the reactionary excesses of the Margaret Thatcher and Ronald Reagan administrations.

After Pinochet’s installation in Chile, other countries followed. One of the worst examples is Mexico. There, wages declined 40 to 50 per cent in 1984, the first year the North American Free Trade Agreement, N.A.F.T.A. agreement came into force. The cost of living rose by 80 per cent. Over 20,000 small and medium businesses failed. More than 1,000 state-owned enterprises have been privatised in Mexico. It is not possible to disagree with the view that Neo-liberalism meant the neo-colonisation of Latin America.

What scholarly theorising meant to American air traffic controllers in 1981 is still vivid in memory: on 3 August that year, after failing to reach any settlement with the Federal Aviation Administration, the Professional Air Traffic Controllers Organization, P.A.T.C.O. employees went on strike, with about 13,000 of the 17,500 P.A.T.C.O. members walking off the job. This strike was in direct contravention of a federal law which specifically banned strikes by government unions and a no-strike clause in each of their individual employment contracts. That same day, then-president Ronald Reagan called the strike a ‘peril to national safety’ and warned strikers that they were in violation of the law and that their employment would be terminated if they did not return to work within 48 hours. A mere ten percent, about 1,300, of the striking workers returned to work within the allotted two days.

Approximately 3,000 supervisors and 900 military controllers joined the non-striking workers. The people working as air traffic controllers were ready to work 60-hour work weeks. About half of the normally scheduled flights were able to take to the air.

On 5 August 1981 the 11,345 remaining striking air traffic controllers were fired and banned from any future federal employment for life. Lane Kirkland, president of the American Federation of Labor and Congress of Industrial Organizations, AFL-CIO called Reagan’s action ‘brutal overkill’. The International Federation of Air Traffic Controllers contemplated a boycott of United States air traffic in support of P.A.T.C.O., but, with the exception of a two-day boycott by Canadian and Portuguese controllers, no action was taken.

The firing of striking workers and replacing them with supervisors and strike-breakers was by no means a new idea. This was a tactic often used in many industries. Typically, the new contract negotiated included a ‘return to work agreement’, in which the striking workers were re-hired with full seniority and, sometimes, with back pay.

P.A.T.C.O. leaders were gaoled for ignoring the court injunction prohibiting the strike. The United States Justice Department issued indictments against 75 controllers. Fines totalling $1 million per day were levied against the union. The union’s strike fund, consisting of over $3 million, was frozen. On 22 October 1981 the Federal Labor Relations Authority decertified P.A.T.C.O. The union was dead.

Prime Minister Hawke had learned something, and put it into practice at the time of the 1989 Australian pilots’ dispute. That was one of the most expensive and dramatic industrial disputes in Australia’s history. It was co-ordinated by the Australian Federation of Air Pilots, A.F.A.P. after a prolonged period of wage suppression, to support its campaign for a large pay increase – quantified at 29.47 per cent.

The dispute began affecting the public on 18 August 1989 with pilots working ‘9-to-5’. It was never formally resolved due to the mass resignation of pilots, cancellation of their award and de-recognition of their union.

As part of this campaign, A.F.A.P. pilots imposed on their employers (on Australian Airlines, Ansett Australia, East-West, and Ipec) a limitation on the hours they were prepared to work, arguing that if they were to be treated in exactly the same way as other employee groups – as was the Government’s position – their work conditions should also be the same. This initially took the form of making themselves available for flying duties only within the normal office working hours of 9 am to 5 pm.

The dispute severely disrupted domestic air travel in Australia and had a major detrimental impact on the tourism industry and many other businesses. Then, with their awards cancelled by the Industrial Relations Commission and Prime Minister Hawke threatening massive fines and sackings, on 24 August the A.F.A.P. resigned en masse. Two days before Hawke had threatened the pilots: “You go out and it’s war.”  Hawke referred to the pilots as “glorified bus drivers” insulting both groups of workers in the process.

He proceeded to scab-herding and what that means in social terms is better explained by Jack London. His famous definition of a scab begins: “After God had finished the rattlesnake, the toad, the vampire, He had some awful substance left with which He made a scab.” Scab-herding is corporate organised crime of a particularly ugly and despicable sort. In the footsteps of Labor Prime Minister Chifley, who sent troops into the mines to break the 1949 coal strike, Prime Minister Hawke declared a national emergency and allowed Royal Australian Air Force planes and pilots and overseas aircraft and pilots to provide services. The R.A.A.F. provided limited domestic air services to ease the impact of the strike. The airlines affected by the strike  recruited new pilots from overseas, and for a while, some overseas airlines operated charter 737 and 757 aircraft on the Australian east coast routes. Travel between Perth and Sydney was clumsily re-routed via Singapore, using international flights. The dispute was superficially resolved after the mass resignation of a significant number of domestic airline pilots to avoid litigation from the employers.

The R.A.A.F. ceased ‘public transport operations’ on 15 December 1989, by 31 December 1989 regular leasing of seats on international flights ceased and, by 12 January 1990, the Government ceased its waiver of landing charges. The airlines were able slowly to return to normal schedules as they hired replacement pilots. Thus no specific date can be set for when the dispute stopped impacting flights, tourism and the economy.

Ansett, Australian Airlines, East-West and Ipec no longer exist. East-West was a subsidiary of Ansett in 1989, and was absorbed fully in 1993. Australian Airlines was merged with Qantas in 1992. Ipec was acquired by Toll Holdings in 1998.

The strike crippled the Australian Federation of Air Pilots and cleared the road to airline industry deregulation. Deregulation and rationalisation are code-words for union-busting. Prime Minister Hawke was considering tens of millions in ‘compensation’ to the ‘airline industry’ – a perfect expression of capitalist ‘austerity. And that is the true face of neo-liberalism.

A conclusion is inescapable. Neo-liberalism means this:

1) The notion of ‘the public good’ or ‘the sense of community’ is replaced with the insidious exaltation of ‘individual responsibility’.

Ordinary people, always the poorest in a society, are sent to find solutions to their lack of education, health care, and social security all by themselves. If they fail, they are blamed for being ‘lazy’.

2) For such fundamental change, public expenditure for social services – such as education and health – must be reduced.

3) As a result, the safety net for the needy and the poor must be reduced. Even maintenance of the basic infrastructure – water supply, roads, bridges – is reduced, on the ‘obvious consideration’ that government role in the economy must be reduced and expenditures must be contained. Of course, ‘government assistance’ to business, often in the form of tax benefits, must continue in the interest of production.

4) Deregulation is introduced as essential.  Everything which could hinder and/or reduce ‘profit’ – including protecting the environment and secure safety on the job – must be done away.

5) Privatisation is introduced in all fields of production and consumption. To achieve that state-owned enterprises, suppliers of goods and services must be sold to private investors on the unproven mantra that ‘public is bad/private is good’. Such massive sale includes key industries, banks, electricity, railroads, toll highways, schools, hospitals and even fresh water. Usually this is done in the name of greater efficiency, which is often needed, but privatisation has mainly had the effect of concentrating wealth even more in a few hands and making the public pay even more for its needs.

When all this is safely and promptly achieved,

6) The market must be let lose to rule. ‘Free’ enterprise or private enterprise must be allowed to rule. Free from any bonds imposed by the government no matter how much social damage this may cause. There must be greater openness to international trade and investment; wages must be reduced wages by de-unionising workers and eliminating workers’ rights which had been won over many years of struggle. Price controls must be abolished There must be total freedom of movement for capital, goods and services.

The mantra is long and goes like this: an unregulated market is the best way to increase economic growth, which will ultimately benefit everyone.

Benefit everyone? And how could anyone disagree?!

It is Thatcher, Reagan, Hawke and Keating – altogether now: “supply-side” and “trickle-down” economics!  Most people are still waiting.

* * * * *

At the federal election of 2 March 1996 John Winston Howard led the Coalition to a sounding victory. From then, and for eleven long years, one may think in terms of ‘restoration’ of old ways.

A solicitor of modest intellectual means but very strong propensity and ability for cunning, he worked his ways through the Liberal Party which culminated to his election for the seat of Bennelong in 1974.

Of Howard it may be said, and very briefly, that he was in effect the Liberal Party’s first pro-market leader in the conservative Coalition and, once elected Leader of the Opposition in 1985, he spent the next two years working to revise Liberal policy away from that of Fraser’s.  In his own words he was an “economic radical” and a “social conservative.” In plain English, he was from the beginning a reactionary without many scruples: more than ‘the end justifying the means’, which could in some cases have a certain elegance – an elegance all of its own, Howard had an eye for ‘whatever it takes’.

His governments – of which there were four between 1996 and 2007 – are too recent to be worthy of mention of policy, planning and results.

Some of Howard’s activities, and how he made his mark, may be worth recalling.

Towards the end of what has been portrayed by partisan scribblers and for the benefit of distracted, ignorant readers as ‘the Khemlani affair’, Howard – a recently elected but in a hurry member of the Coalition – worn the respect of the usurper in the Royal Ambush of 11 November 1975.

The ‘Khemlani  affair’ was a political scandal of Coalition confection which would embarrass the Whitlam Government of Australia in 1975. The government was accused of attempting to borrow money from Middle Eastern countries through the agency of a Pakistani operator by the name Tirath Khemlani, bypassing ‘standard procedures’ of the Australian Treasury.

Now, one should keep in mind that pecunia non olet – “money does not stink”, as  a Latin saying goes. Ah, yes, but such money is acceptable at the periphery of the Empire only if it comes through the ‘proper channels.’ And those channels have been ‘traditionally’ to be found only in S.W.1 (London) or – otherwise, if strictly necessary – Wall Street.

S.W.1 is some kind of ‘sacred site’ to the Australian Treasury, because there is the City of London. The City of London Corporation, officially and legally the Mayor and Commonalty and Citizens of the City of London, is the municipal governing body of the City of London, the historic centre of London and the location of much of the United Kingdom’s financial sector.

Many major global companies have their headquarters in the City, including Aviva, BT Financial Group, Lloyds Banking Group, Old Mutual, Prudential, Schroders, Standard Chartered, and Unilever. A number of the world’s largest law firms are headquartered in the City.

And, according to the Australian Treasury, there was the place, and no other, where to seek a loan – if any. Whether in fact those loan providers receive, place, exchange money coming from Middle East sources would not matter. Their money would not stink.

Minerals and Energy Minister Rex Connor wanted funds for a series of national development projects. He proposed that, to finance his plans, the government should borrow $US 4 billion. The minutes authorising the borrowing were signed by the ministers concerned and duly counter-signed by the Governor-General, John Kerr. Was he acting as Queen-proxy? or as Queen John? Hard to say.  Contacts had been made on 13 December 1974. Prime Minister Whitlam, his deputy, the Attorney General and the Minister for Mineral and Energy were au fait. Minister Connor had been introduced to a Pakistani dealer by the name of Tirath Khemlani, employed by Dalamal and Sons, a London-based commodity-trading firm.

According to Khemlani, Connor asked for a 20-year loan with interest at 7.7 per cent and set a commission to Khemlani of 2.5 per cent. Despite assurance that all was in order, Khemlani began to stall on the loan, notably after he was asked to go to Zurich with officials of the Reserve Bank of Australia to prove that the funds were in the Union Bank of Switzerland as he had claimed. The government revised its authority to Connor to $2 billion.

The raising of foreign loans for the Australian Government at the time required the authorisation of the Loan Council. It was common knowledge that funds were usually borrowed from European banks or financiers. Connor’s attempt to secure the loan was unusual for several reasons: 1) the size of the loan, 2) the lack of a partnership with foreign investors, which is customary, but was excluded by Connor who wanted Australian resources controlled and owned by Australians, 3) the Minister wanted to raise the loan independently from Treasury, 4) the loan was to come from Arab financiers, not the usual, ‘respectable’ sources based in London – if really necessary, in New York, but no further.

The Middle East at the time was awash with ‘petro-dollars’, as the price of oil quadrupled between 1973 and 1974.

Connor was duly authorised to raise loans through Khemlani in late 1974.

Between December 1974 and May 1975 Khemlani sent an avalanche of regular telexes to Connor advising that he was close to securing the loan.

However, the loan never eventuated and, in May 1975, Whitlam sought to secure the loan instead through a major United States investment bank. As part of the loan procedure, this bank imposed an obligation on the Australian Government to cease all other loan raising activities pertaining to this loan and accordingly, on 20 May 1975, Connor’s loan-raising authority was formally revoked.

As news of the plan leaked, the Opposition began questioning the Government. Under questioning from Fraser, Whitlam said on 20 May that the loans pertained to “matters of energy”, that the Loans Council had not been advised, and that it would be advised only “if and when the loan is made.” The following day he told Fraser and Parliament that authority for the plan had been revoked.

A special one-day sitting of the House of Representatives was held on 9 July 1975, during which the Prime Minister tabled the documents containing evidence about the loan and attempted to defend his government’s actions. He did not know that Connor had continued to deal with Khemlani, a fact which was later revealed by Australian newspapers.

Beset by economic difficulties at the time, and by the negative political impact that the ‘loans affair’ conjured up, the Whitlam Government was vulnerable to further assaults on its credibility.

Connor’s authority to seek an overseas loan was withdrawn following leaking of the scandal, but he continued to liaise with Khemlani. A journalist from The (Melbourne) Herald tracked down Khemlani in mid-late 1975 and following an interview, revealed that Khemlani and Connor were still in contact, bringing the ‘loans affair’ to a head. When Connor directly denied Khemlani’s version of events, as reported in The Sydney Morning Herald, Khemlani flew to Australia in October 1975 and provided the Melbourne journalist with a mass of telexes, sent to him from Connor, which refuted Connor’s denial.

On 13 October 1975 Khemlani provided a statutory declaration and a copy of the telexes he had recently exchanged with Connor. He sent copy of the lot to Prime Minister Whitlam. Upon receiving the documents, Whitlam dismissed Connor from his government for misleading Parliament.

In his letter of dismissal, date 14 October 1975, Whitlam wrote: “Yesterday I received from solicitors a copy of a statutory declaration signed by Mr. Khemlani and copies of a number of telex messages between Mr. Khemlani’s office in London and the office of the Minister for Energy. In my judgment these messages did constitute ‘communications of substance’ between the Minister and Mr. Khemlani.”

The ‘loans affair’ embarrassed the Whitlam government and exposed it to claims of impropriety. The Malcolm Fraser-led Opposition used its majority in the Senate to block the government’s budget legislation, thereby attempting to force an early general election, citing the ‘loans affair’ as an example of ‘extraordinary and reprehensible’ circumstances.

Prime Minister Whitlam refused to call an election. Event precipitated and were concluded by the Royal Ambush of 11 November 1975.

What was not known at the time is that Khemlani had come to Australia several times after the 20 May 1975 revocation of commission for the loan.

He arrived during the crisis which led to the Royal Ambush and was seen carrying two large suitcases. They contained the massive correspondence from and with Connor, and related documents.

It is said that Howard and Phillip Reginald Lynch – later Sir Phillip, then Deputy Leader of the Liberal Party and the future Treasurer in the Fraser Government, spent a night at the Canberra Hotel in Canberra going through the suitcases, and searching for incriminating documents. That is the kind of activity ordinarily confined to ordinary police agents – of all kind. In that way, Howard – nominally a solicitor who should have known better – was trying to earn brownie points with Fraser. Actually, he succeeded beyond expectation: Fraser would appoint him Minister for Business and Consumer Affairs, in charge in particular with the assassination of the Murphy Trade Practices Act 1974.

In government the name of John Howard would be tied to several cases of violation of domestic as well as international law and treaties.

Continued Saturday – The Tampa, Hicks, and Other Cases

Previous instalment – Beyond the ‘Palace Letters’ (part 2)

By Dr George Venturini  

Traveller had not heard much about Australia before deciding on his visit, but he remembered often about an Australian, whom Mrs. Eleanor Roosevelt had mentioned, during a lecture at the University of Bologna (998 c.e.), as her partner in the drafting of the Universal Declaration of Human Rights of 1948. It was a certain Dr. Evatt. It was, of course, Dr. Herbert Vere Evatt, distinguished jurist and the third President of the United Nations General Assembly from 1948 to 1949.

On the occasion of a visit to Sydney, Traveller took care of visiting the Evatt Foundation, appropriately named after the former judge, lawyer, parliamentarian, foreign minister and author. It was there that Traveller encountered per chance Ms. Faith Mussingkon Bandler, the daughter of Wacvie Mussingkon, blackbirded from Ambrym Island, Vanuatu, in 1883, at the age of about 13. He was then sent to Mackay, Queensland before being assigned to work on a sugar cane plantation. He later escaped and married Bandler’s mother, a Scottish-Indian woman from New South Wales.

In 1967, when Traveller visited Sydney, Faith was actively campaigning for the rights of the Indigenous People and the South Sea Islanders. She would become the more visible leader in the campaign for the 1967 referendum on Indigenous People in Australia. She introduced Traveller to her husband Hans Bandler, a fortunate Jew who, after the Anschluss, had been taken from Vienna to Dachau – fortunate because a corrupt guard at the ‘re-education college’ would accept a liberating bribe.

Faith and Hans remained close to Traveller for the rest of their life, and it is to them that Traveller owes the fortune of meeting other interesting Australians, particularly after he established himself for work in Sydney.

Traveller likes to say that almost everything he began to learn about Australian law he owes to people like Prof. Geoffrey Sawer, who would be the ideal teacher, despite – perhaps, because of – the murmuring of some pigmies in law circles and their considered view that Geoffrey was not really as good as claimed. Why, he would write a weekly column ‘Between the lines’ in The Canberra Times for over twenty years – but without footnotes!? What kind of real professor would do that?

Next would be curmudgeon Patrick White, whom Traveller first met through Faith, and whose writing he ‘attacked’ several times before he was able to appreciate the value of what was to become the first – and thus far only – Nobel Prize in Literature to an Australian in 1973. One could notice some lines in a piece he wrote about himself as ‘the prodigal son’ – obviously written in 1958 after his return to Australia from overseas: “In all directions stretched the Great Australian Emptiness, in which the mind is the least of possessions, in which the rich man is the important man, in which the schoolmaster and the journalist rule what intellectual roost there is, in which beautiful youths and girls stare at life trough blind blue eyes, in  which human teeth fall like autumn leaves, the buttocks of cars grow hourly glassier, food means cake and steak, muscles prevail, and the march of material ugliness does not raise a quiver from the average nerves.” (P. White, Patrick White speaks, Primavera Press, Sydney 1989 at 15). Correct, prophetic and actual, even though the food has now had the benefit of multiculturalism – as it were; no more ‘meat and three vegies’ – and car-buttocks are of necessity more parsimonious.

And then there was a chain of new friends and sources of information. Not in any order of ‘discovery’, here they come: Allan Campbell Ashbolt, was an Australian journalist, occasional actor who helped establish the Mercury Theatre with Peter Finch – also met through Allan – before Allan was hired by the Australian Broadcasting Corporation as a television producer. In 1959 Allan was appointed as the A.B.C.’s first North America correspondent, and during 1963 he served as a correspondent and executive producer of Four Corners, Australia’s longest-running investigative journalism/current affairs television programme Allan was known for his belief that the A.B.C. should promote free speech and controversial political content.

Over a very moderate drink at the famous Harold Park Hotel in Glebe, N.S.W. Allan introduced Traveller to the unforgettable Frederick Cossom ‘Fred’ Hollows who, much like a healing god of antiquity, would provide eyesight to more than one million people in the world.

There follows in that list of illustrious acquaintances: Jack Mundey of the original greens’ movement; Helen Caldicott the firebrand of the anti-nuclear movement; Barry Jones, too learned and civilised to be appreciated and respected by his ever-swilling ‘comrades’, who ended up disposing of him as Minister for Science; Charles ‘Manning’ Hope Clark, still “Australia’s most famous historian”; the absolutely magnificent Ted Wheelwright, whose economic advice was often asked, but hardly respected, or only too late or never; H. C. ‘Nugget’ Coombs, who won Traveller’s respect  as a Keynesian rebel against the classical economics theory which had dominated the Anglophile Commonwealth Treasury; Russel Braddock Ward, who taught Traveller history as should be read and understood; James Ford ‘Jim’ Cairns, the conscience of the Labor Party; and Lionel Keith Murphy, the man who dragged Australian written law into the twentieth century, although the practitioners of that law, from corrupt Barwick on the High Court to the manufacturers of the tapes which sent Lionel to the grave, would finally show that – as Prof. Sawer had admonished in 1966 – when it comes to change “Australia’s movement is glacial.”

Traveller is proud to have learned from Henry Reynolds the only reliable history of the ‘relationship’ between the invaders and the original inhabitants of – should one call it Sahul? Most historians who have dealt with the scabrous subject turned out to be successful fabulists or hired-pen sycophants.

* * * * *

After the Royal Ambush, the usurper Malcolm Fraser led the anti-Labor Coalition to a landslide victory, which was easily repeated in 1977. The Coalition won a majority in its own right in both of these elections, something that Menzies and Holt had never achieved.

Fraser quickly dismantled some of the programmes of the Whitlam Government and made major changes to the universal health insurance system Medibank. The Fraser government practised Keynesian economics, in part demonstrated by running budget deficits throughout its term. Fraser was the Liberal Party’s last Keynesian prime minister of a kind. Though he had long been identified with the Liberal Party’s right wing, he did not carry out the radically conservative programme that his political enemies had predicted, and that some of his followers wanted. Fraser’s relatively moderate policies particularly disappointed the Treasurer, John Howard, as well as other ministers who were strong adherents of emerging free market neo-liberal economics, and therefore detractors of Keynesian economics. As will be seen, Howard thought that he had won special merit during the carrying-ons of the so-called Khemlani affair. Meanwhile the government’s economic record was marred by rising double-digit unemployment and double-digit inflation, creating ‘stagflation’, caused in part by the ongoing effects of the 1973 oil crisis.

By early 1982 Robert James ‘Bob’ Hawke, the popular former president of the Australian Council of Trade Unions, who had entered Parliament in 1980, was polling well ahead of both Fraser and the Labor Leader, Bill Hayden, on the question of who voters would rather see as prime minister. Fraser was well aware of the infighting this caused between Hayden and Hawke and had planned to call a snap election in autumn 1982, preventing the Labor Party changing leaders.

As leadership tensions began to grow in the Labor Party throughout January, Fraser subsequently resolved to call a double dissolution election at the earliest opportunity, hoping to capitalise on Labor’s disunity. He knew that if the writs were issued soon enough, Labor would essentially be frozen into going into the subsequent election with Hayden as leader.

On 3 February 1983 Fraser arranged to visit the Governor-General of Australia, intending to ask for a surprise election. However, Hayden resigned as Labor leader just two hours before Fraser travelled to Government House. This meant that the considerably more popular Hawke was able to replace him at almost exactly the same time that the writs were issued for the election. Labor immediately surged in the opinion polls.

At the election on 5 March the Coalition was heavily defeated, Fraser immediately announced his resignation as Liberal leader and formally resigned as prime minister on 11 March 1983; he retired from Parliament two months later.

In 1993 Fraser made an unsuccessful attempt to gain the Liberal Party presidency. In time he became quite critical of the Howard Coalition Government, particularly over foreign policy issues, such as Australia’s alignment with the foreign policy of the Bush administration, that Fraser saw as damaging Australian relationships in Asia. He opposed Howard’s policy on asylum-seekers, campaigned in support of an Australian Republic(!) and attacked what he perceived as a lack of integrity in Australian politics(!), considering himself in alignment both with his predecessor Whitlam and his successor Hawke. Of the latter it is said that he was a republican.

So here it was: a member of the squattocracy – people occupying Crown land in order to graze livestock, who regard themselves and are recognised as a social group or ‘of a better class’ – who had received any sort of concession and privilege from the monarchy, who had personally enjoyed the assistance of the representative of the Crown in climbing to power through the Royal Ambush, who had spoken with contemptuous disdain of the common people and their condition, who would say: “We used to have a view that to really be a good Australian, to love Australia, you almost had to cut your links with the country of origin (in his case, presumably England). But I don’t think that was right and it never was right.” – at the opening of the Special Broadcasting Service in 1980, and who would be remember for saying, during his Alfred Deakin Lecture speech in 1971: “Life wasn’t meant to be easy,” as a gloomy explanation to-and-for others of life’s relentless difficulties, while conveniently misquoting George Bernard Shaw, who actually had softened that pessimism with an expression of encouragement and hope by adding: … “but take courage: it can be delightful.”

After Sir John Kerr – Falstaff really, a tragic-comic figure of a fat, van, boastful, and cowardly knight, here comes John Malcolm Fraser, A.C. (Companion of the Order of Australia), C.H. (of the Order of the Companions of Honour), and G.C.L., holder of titles conferred by the grace of Queen Elizabeth II, and a newly mint republican.

Fraser was succeeded by another cheap republican, Bob Hawke, in 1983.

On 5 March 1983 Hawke led Labor to a landslide victory and was sworn in as prime minister.

He would lead Labor to victory three more times: in 1984, 1987 and 1990, making him the most electorally successful Labor Leader. The Hawke Government set up Medicare and Landcare, floated the Australian dollar, deregulated the financial sector, initiated superannuation pension schemes for all workers, introduced the Family Assistance Scheme, and oversaw passage of the Australia Act that removed all remaining jurisdiction by the United Kingdom from Australia, announced “Advance Australia Fair” as the official national anthem, and established the Asia-Pacific Economic Cooperation.

Hawke did two more things.

Firstly, he presided over the setting up of the John Curtin Foundation.

Formed in October 1984, the Foundation was a fundraising organisation for the  Labor Party which attracted the sponsorship of a powerful group of wealthy businessmen, placing them in a privileged circle with direct access to both Prime Minister and the State Premier Brian Burke. It turned out to be a den of crooks and corporate criminals, it caused multiple financial disasters, leading to a royal commission which exposed and condemned the corruption. Many such criminals are captured in the following picture.

A John Curtin Foundation gathering Left to right, rear: Denis Cullity, John Horgan, Alan Bond, Laurie Connell, Ric Stowe, James McCusker, Rod Evans; Front: Kevin Parry, prime minister Bob Hawke, state premier Brian Burke, John Roberts and former Perth lord mayor Ernest Lee-Steere.

Messrs. Bond, Connell, Parry, and former State Premier Burke went to gaol as corporate criminals, while Mr. Stowe did not, but was in deep difficulties.

Secondly, Prime Minister Hawke was instrumental to the stipulation of the Prices and Incomes Accord, which muzzled and weakened the union movement and, in time, would preside over the decline of union membership.

Trends in level of union membership and union density—1976 to 2016

Sources: 1976–1993: ABS, Trade Union Members, cat. no. 6325.0; 1994–2013: ABS, Employee Earnings Benefits and Trade Union Membership, cat. no. 6310.0; 2014–2016: ABS, Characteristics of Employment, cat. no. 6333.01 (Trends in union membership in Australia – Parliament of Australia, G. Gilfillan and C. McGann, 15 October 2018).

Around 15 per cent of all full–time employees in August 2016 were union members.

This is unquestionably the ultimate result of a corporative policy.

When the Hawke Government implemented a comprehensive programme of financial deregulation and reform, it transformed economics and politics in Australia. The Australian economy became significantly more integrated with the global economy as a result, which completely transformed its relationship with Asia, Europe and the United States. Both Hawke and his Treasurer and successor at the end of 1991 Paul Keating would claim the credit for being the driving force behind the success of the Australian Dollar float. (J. Edwards, Keating, The Inside Story, Penguin Books Australia, Ringwood, Victoria 1996, at 216-217).

Among other reforms, the Hawke-Keating Government dismantled the tariff system, privatised state sector industries, ended the subsidisation of loss-making industries, and sold off the state-owned Commonwealth Bank of Australia, Optus, Qantas Airways and Commonwealth Serum Laboratories Ltd. The tax system was reformed, with the introduction of a fringe benefits tax and a capital gains tax, reforms strongly opposed by the Coalition parties at the time, but not ones that they reversed when they eventually returned to office. Funding for schools was also considerably increased, while financial assistance was provided for students to enable them to stay at school longer. Considerable progress was also made in directing assistance to the most disadvantaged recipients over the whole range of welfare benefits.

The partnership between Hawke and Keating proved essential to Labor’s success in government. The two men proved a study in contrasts: Hawke had been a Rhodes Scholar, he was fond of cigars, horse racing and all forms of sport; Keating left high school early, nevertheless preferred classical architecture, Mahler symphonies and collecting British Regency and French Empire antiques. Hawke was consensus-driven; Keating revelled in aggressive debate. Hawke was a lapsed Protestant; Keating was a practising Catholic. These differences, however, seemed only to increase the effectiveness of their partnership, as they oversaw substantial economic and social changes throughout Australia.

The Keating Government focused mainly on economic issues in its first term, introducing compulsory superannuation, creating an infrastructure development programme.

In later years, Keating’s agenda centred more on social and cultural matters. He participated in the ‘history wars’, and helped make republicanism and the rights of Indigenous People the subject of national debates.

Keating led Labor to an unexpected and record-breaking fifth consecutive election victory on 13 March 1993.

Having secured a mandate in his own right as prime minister, Keating immediately set about implementing as much of what he called his ‘big picture’ as possible, leading the consultation and introducing legislation that would eventually lead to a 1999 referendum on Australia becoming a republic. His government established the Republic Advisory Committee and, after the victory at the Mabo case, enshrined native title in statute law.

Continued Wednesday – Beyond the ‘Palace Letters’ (part 3)

Previous instalment – Beyond the ‘Palace Letters’ (part 1)

By Dr George Venturini  

Cont from Part 9

69. There was a parallel to the Freedom of Information Act 1982 (Cth), which came in at the same time, where the Governor-General was not an agency, but the Official Secretary of the Governor-General was. Here it was a similar kind of demarcation where the official was in, but the person was out of, the operation of the statutory regime.
70. The respondent submitted that looking at that kind of demarcation and recognising that s 3(2) contemplated that there would be such a thing as property of the official establishment of the Governor-General, the kinds of material that one would ascribe to that category were things like proclamations, regulations under laws made by the Parliament, records of formal advice to the Federal Executive Council, formal appointments of a Minister of a department of state under s 54 of the Australian Constitution, appointments or removals of other officers under s 67 of the Australian Constitution, all being a range of powers or functions that the Governor-General exercised in an obviously official way involving a deployment of power. And that would normally be the product of advice submitted to the Governor-General through the office from the Executive government of the day. That was the main significance of the primary judge’s finding, at [120], that here the Governor-General was not exercising Executive powers: it had negative significance in that it was not a function of that kind that the Court was now concerned with.
71. The demarcation that had been drawn between the official establishment and the Governor-General included at least personal letters written by the Governor-General to The Monarch. The legislative history showed that it was that category of correspondence that seemed to have been the particular driver for a partial exclusion of the Governor-General from the Archives Act. So the category that the Court was concerned with was front of mind for Parliament at the time.
72. The respondent submitted the exclusion might well go further than Palace correspondence: tasks that were undertaken by the Governor-General personally himself or herself without being responsive to advice from the Executive government and without the need for extensive support from the official establishment were the kinds of things that Parliament was endeavouring to recognise were the personal or private property of the Governor-General. That would include not just Palace correspondence but other personal correspondence, diaries the Governor-General might have kept, perhaps speech notes of speeches that the Governor-General wrote for himself or herself. Documents of that kind did not readily fall within the undefined notion of the official establishment that Parliament chose to adopt.
73. A further textual consideration, the respondent submitted, that bore on the question was that the definition of “Commonwealth record” focused on the property being “the property of the Commonwealth or of a Commonwealth institution” which pointed towards the conclusion that the Act was concerned only to render a Commonwealth record property where the Commonwealth had the full and complete ownership of the record under the general law, rather than some lesser proprietary interest in it.
74. If that were not the case, the Act would operate most strangely because, for example, the Archives had the power under s 6(1)(h) of the Act to authorise the disposal or destruction of Commonwealth records. If the property could be anything other than the exclusive property of the Commonwealth archives, the Archives Act would authorise destroying proprietary interests of other persons.
75. The representative function of the Governor-General, the respondent submitted, did not involve any communication of an intergovernmental kind from the British Government to the Australian Government. It was a representative role in relation to the person occupying the hereditary status as sovereign of the United Kingdom identified in covering clause 2 of the Australian Constitution and representing that person as The Monarch but as Monarch who had no role and no powers that they could perform within Australia.
76. The respondent submitted the words “person” or “personal” were to be understood in that way. References to “personal” in this context did not mean “private” and did not mean “not in an official capacity”. It suggested it was not right to draw a dichotomy between the personal and the functions of the Office. The function of the Office might have a personal dimension in representation of the person as Monarch of Australia. Although the records concerned the way that the Governor-General was carrying out his functions at the time, and in that general sense concerned his functions, they nevertheless correctly carried the description personal and confidential communications with The Monarch.
77. The respondent submitted the special character of the functions of the Governor-General were recognised and examined by the High Court in Kline. The respondent submitted the line-drawing exercise that Kline was concerned with was of a parallel kind to the problem before this Court. At [34], the High Court recognised that the processes and activities of government which were opened to increased scrutiny by the Freedom of Information Act did not include those associated with the exercise of the Governor-General’s substantive powers and functions. Some of the functions were of a sui generis kind and needed to be exercised in private. The respondent also referred to [77] of Kline per Gageler J.
78. The respondent submitted that here, similarly, the evident intention not to bring the Palace records within the scope of the Archives Act over the various iterations of the Archives Bill prior to its enactment likewise compelled the conclusion that the records should not be held to be Commonwealth records.
79. The source of the pieces of paper did not answer the question and what was more significant was that what the Governor-General was doing was a unique function of a representative kind, but in the unusual representative circumstance that existed as between The Monarch and the Governor-General where there was no capacity to direct and no ongoing function in Australia: that interaction was of a kind that was personal not in the sense that it did not involve in some sense the performance of functions, but because the particular function that was involved for the Governor-General was aptly described as “personal”.
80. That, the respondent submitted, was what the primary judge meant when he was talking about the sui generis character of the relationship. That was consistent with the way not just that Sir John Kerr regarded what was occurring, but the way that the Palace treated it and the way that the Archives treated it from the start. The respondent submitted the practice of the Archives constituted the Commonwealth acquiescing in the arrangement or the understanding of the source of property in these documents.
81. The respondent referred to the evidence given by Mr Mark Fraser by affidavit affirmed 3 February 2017. Mr Fraser was appointed to the position of Official Secretary to the Governor-General in June 2014. He deposed to his understanding that it was a matter of long-standing convention that correspondence between The Monarch and Her Governors-General across the 15 Realms outside the United Kingdom were private and confidential communications not forming part of any official government [record]. Underpinning the convention was the fundamental British constitutional principle that communications between The Queen and Her Ministers and other public bodies should remain confidential, and that the political neutrality of The Queen and the Royal Family, and the Royal Household acting on their behalf, should be maintained. By extension, Mr Fraser deposed, communications with the Vice-Regal representatives of The Queen also fell within the terms of this principle. This long-standing convention existed in order for The Sovereign and Her representatives in the Commonwealth Realms to communicate in confidence and thereby permitted and facilitated such communications.
82. The respondent submitted that Nixon v Sampson was of limited assistance because, ultimately, one had to drill down into the particular duties and functions in question. The fact that there was quite a close connection between the production of the record, on the one hand, and the duties and functions did not answer the property question, even applying the United States principles. Here, there was such a dramatic difference between the role of the Governor-General, particularly as it related to corresponding with the Monarch, and that of the President of the United States, that the Court’s approach to the tape recordings at issue in Nixon told this Court little, if anything, as to who owned the Palace correspondence.
83. The respondent also referred to United States v First Trust Company of St Paul [1958] USCA8 26; 251 F.2d 686 (1958), affirming First Trust Company of St Paul v Minnesota Historical Society 146 F. Supp. 652 (1956). That litigation concerned certain historical documents, being a series of original writings on miscellaneous scraps of paper of various sizes, describing the Lewis and Clark Expedition’s winter encampment near the mouth of the Missouri River in 1803-4 and a part of the Expedition’s subsequent exploratory journey on the Missouri River in 1804-5. In the Court of Appeals, Eighth Circuit, the court held that the trial court was not clearly erroneous in finding that the papers were written for Captain Clark’s private use only and that accordingly the government had not sustained the burden of proof establishing its claim to them. The court agreed with the opinion and order of the District Court, that the documents in question were the rough notes of Captain Clark, made by him for his personal use in subsequently preparing his own private diary and hence were not an official work product of the Lewis and Clark Expedition to which the United States could claim paramount title. An examination of the 67 documents in question indicated that while they did contain much data such as President Jefferson requested Captain Lewis to gather in his official record, they also carried a great many personal and private notations. Although Captain Lewis sent the Clark journals to President Jefferson, he gave him instructions as to limitations on their use which the President observed. The Court of Appeals said, at 691, that apparently not only Clark himself but Lewis and Jefferson believed the papers to be the personal property of Captain Clark.

Consideration

84. As a matter of first impression, it may seem strange that the Archives Act proceeds by reference to whether or not a record is the property of the Commonwealth. The matter was not argued on the basis of the ownership of the paper on which the records were written. Nor was it argued on the basis of copyright: compare Moorhouse v Angus & Robertson (No. 1) Pty Ltd [1980] FSR 231; and, on appeal, Moorhouse v Angus & Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700. It was not suggested that the Commonwealth owned the copyright in the unpublished literary works, as made by, or under the direction or control of the Commonwealth: see Pt VII of the Copyright 1968 (Cth).
85. We have set out above at [62] the background to the statutory choice that was made by the Parliament.
86. In our opinion, the primary judge was correct, at [119], to reject the appellant’s submission that the records should be viewed as the property of the Commonwealth simply because their subject-matter related to the performance of the Governor-General’s role and function. To find a conclusion as to property on such a functional approach would be to introduce an administrative provenance definition, when that alternative had been rejected some years earlier.
87. There are contexts (such as the records of an agency relationship: see Watts P and Reynolds FMB, Bowstead and Reynolds on Agency (21^st ed, Thomson Reuters, 2018) p 284 [6-093]) where the law will provide a rule as to ownership of or access to documents by reference to the relationship of parties and their obligations and duties towards each other. In a unique constitutional, governmental and Vice-Regal context such as the office of the Governor-General, the question of property in documents is not answered by some simple rule transposed from other contexts.
88. To accept the appellant’s proposition of functional performance would be to hold that every record written by the Governor-General may, as a result of s 56, be made available by the Minister, or a person authorised by him or her, for public access. Such a result would be at variance with the objects and purpose of the Archives Act, in light of the relevant context we have summarised at [24]–[40] above.
89. A straightforward example to illustrate the point would be a personal diary. Such a diary might well relate to the author’s performance of his or her role or functions but that without more would not make the diary the property of the Commonwealth. In so saying we do not limit our consideration to the position of the Governor-General: it would extend to Ministers and other officers of the Commonwealth.
90. Relevant to the conclusion so far as concerns the Governor-General is the width of the proposition put by the appellant which would treat in the same way records relating to the wide range of powers and functions of the Governor-General, as referred to in Kline by French CJ, Crennan, Kiefel and Bell JJ at [11] and [38]:

Section 61 in Ch II of the Australian Constitution vests the executive power of the Commonwealth in the Queen and provides that such power is exercisable by her representative in Australia, the Governor-General. The grant of honours, once regarded as part of the prerogative of the Crown, is now encompassed in the executive power conferred by s 61. These proceedings are not concerned with any of the many powers or functions of the Governor-General which involve acting on the advice of the Executive Council. Whilst it is accurate to describe the role of the Governor-General as having evolved since Federation, Governors-General have exercised a range of constitutional, statutory, ceremonial and community responsibilities. The Governor-General’s role in respect of the Order reflects ceremonial and community responsibilities, as well as the Governor-General’s constitutional position as the representative of the Sovereign in Australia.

The Governor-General, in common with judges, takes an oath to undertake his or her functions without fear or favour. However, as mentioned, the position of the Governor-General calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council.

(Footnotes omitted).

91. No doubt some of the records written by the Governor-General would be the property of the Commonwealth and one general example may be records of the exercise by the Governor-General of the executive power of the Commonwealth within the meaning of s 61 of the Constitution. It is to be recalled that, by that section, “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
92. We would however place less emphasis than did the primary judge on what the Governors-General and their heirs and successors did in relation to the records relating to their office over the entirety of the period since Federation. This is because both the relationship between Australia and the United Kingdom and the relationship between The Queen and the Governor-General has developed over that period. The Balfour Declaration illustrates the point: and see Sue v Hill [1999] HCA 30; 199 CLR 462 at [76] per Gleeson CJ, Gummow and Hayne JJ.
93. It is to be recalled that the Balfour Declaration contained the following:

We proceeded to consider whether it was desirable formally to place on record a definition of the position held by the Governor-General as His Majesty’s representative in the Dominions. That position, though now generally well recognised, undoubtedly represents a development from an earlier stage when the Governor-General was appointed solely on the advice of His Majesty’s Ministers in London and acted also as their representative.

In our opinion it is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government.
(Footnote omitted).

Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 11)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 9)

By Dr George Venturini  

A ‘Commonwealth record’ is defined as any record which is the property of the Commonwealth, but the term does not extend to such material in a collection maintained by the Australian War Memorial, the National Library of Australia or the Australian National Gallery.

The Australian Archives will have the power to seek the deposit in its custody of other records closely associated with the origin, history and functioning of the Commonwealth Government and to take steps to ensure that such material is properly preserved.

Special provision is made for certain Commonwealth records separate from those of the Public Service and associated Government agencies. The provisions of the legislation will apply to the records of the official establishment of the Governor-General, but not to his private or personal records… Special arrangements have been made in order that the provisions of the legislation can be applied to records of the Parliament and the courts by means of regulations, in terms consistent with the constitutional relationship between the Executive Government and the Parliament and the courts.
(Senate Hansard, 2 June 1983, page 1183 left hand column and page 1184, left hand column.)

(Emphasis added.)

40. It was the Archives Bill 1983 which was enacted.

The facts

41. It is appropriate first to consider the arrangements by which the records came to be in the custody of Australian Archives as existing before the Archives Act came into force in order to consider the operation, if any, of s 6(2).
42. According to the parties’ agreed statement of facts, set out by the primary judge at [9]:

…

6. On 26 August 1978 Mr Smith, in his capacity as Official Secretary to the Governor General lodged with the Archives the documents contained in Archives record AA1984/609 (AA1984/609).

…
11. Mr Smith by letter covering the original bundle instructed that those papers:

(a) were to remain closed until after 8 December 2037; and
(b) thereafter were not to be released without prior consultation with the Sovereign’s Private Secretary of the day and the Governor-General’s Official Secretary of the day.

12. On 23 July 1991 the then official secretary to the Governor-General, Douglas Sturkey, instructed the Archives that, on the instructions of The Queen, the date of release of the original bundle had been amended to after 8 December 2027, subject to the approval of the Sovereign’s Private Secretary and the Official Secretary to the Governor-General.

…

43. The primary judge set out, at [18], the letter of deposit, which stated relevantly:

This package contains the personal and confidential correspondence between the Right Honourable Sir John Kerr, A.K., G.C.M.G., G.C.V.O., K.St.J., Q.C., Governor-General of the Commonwealth of Australia from 11 April 1974 until 8 December 1977, and Her Majesty The Queen.

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.

Thereafter the documents are subject to a further caveat that their release after 60 years should be only after consultation with the Sovereign’s Private Secretary of the day and with the Governor-General’s Official Secretary of the day.

44. The primary judge, at [3], identified the central question in the proceeding as whether or not the relevant records were Commonwealth records, with the consequence that public access to them would be governed by Div 3 of Pt V of the Act, and not the terms of the instrument (or letter) of deposit.
45. The appeal was conducted on the same basis. That is, if the records were the property of the Commonwealth and thus a Commonwealth record as defined, the effect of the arrangements referred to in s 6(2) would be displaced. The appellant submitted that if she proved ownership by the Commonwealth, s 6(3) was one of the reasons why there should have been review by the primary judge of the approach taken by the Archives.
46. Important to the arguments of the parties, and one foundation of the appellant’s submissions, was the following agreed fact:
47. The majority of the letters exchanged between the Governor-General (including by means of his Official Secretary) and the Queen (by means of Her Private Secretary) address topics relating to the official duties and responsibilities of the Governor-General. Some of the letters sent by the Governor-General (including by means of his Official Secretary) take the form of reports to The Queen about the events of the day in Australia. Certain of these letters include attachments comprising photocopies of newspaper clippings or other items of correspondence, expanding upon and corroborating the information communicated by the Governor-General in relation to contemporary political happenings in Australia.
48. At [132], the primary judge said that historically and conventionally, a distinction had been drawn between correspondence between a Governor-General and The Queen arising from the performance of the duties and functions of the office of Governor-General and correspondence between the Governor-General and other persons arising from the performance of those duties and functions. The sui generis nature of correspondence between The Queen and a Vice-Regal representative was not, however, confined to Sir John himself. It was reflected in the evidence relating to the arrangements made by other Governors-General in relation to such correspondence, including Lord Casey, Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen. This view, apparently well-known and accepted by the Executive, was discussed by the primary judge at [117].

The submissions of the parties

48. The appellant submitted that on the facts in this case property could not be at one and the same time the property of both the former Governor-General and of the Commonwealth.
49. It was not left to inference or speculation as to the circumstances in which the pieces of paper with markings on them, that is, the chattels, came into existence. The records as a matter of fact comprised the originals of correspondence from the Queen or her Private Secretary to the Governor-General and copies of the Governor-General’s correspondence in the other direction.
50. The appellant drew attention to what the primary judge said at [107], as follows:

For the following reasons, I find that, at all relevant times, the documents comprising AA1984/609 were the personal property of Sir John Kerr and were not the property of the Commonwealth…

51. What the primary judge said following [107], the appellant submitted, did not comprise reasoning as to what followed as a matter of law in relation to property, including the subspecies of property called ownership, springing from the circumstances of the creation of those chattels. In other words, the appellant submitted, [108] and following were matters which were subsequent to the creation of the documents and which appeared to have been used by the primary judge as a kind of inferential or indirect support for his conclusion. As a matter of method it was striking that, when everything necessary to be known in the ordinary way to ascertain ownership was known, one did not either start or preferably finish with those matters. Although this was not private litigation, when there was in private litigation a dispute about ownership, it was rarely useful and never decisive that one of the disputing parties maintained that they owned the property. Admissions against interest were one thing. Statements simply out of court asserting the contested issue to be determined in favour of the party asserting it out of court was neither here nor there.
52. The appellant submitted that those records, those chattels, became, upon their creation and given the circumstances of their creation, the property of the Commonwealth of Australia. It was a question for a court of law to determine the property, that is, the ownership of papers created in the circumstances such as these were created. The self-evident concern as to the special nature of this correspondence did not speak to property.
53. The appellant submitted that no convention had been shown that Governors-General could take away as their own papers correspondence with The King or The Queen. It was doubtful, the appellant submitted, whether in any factual sense there was any convention of a kind which was either justiciable or capable of being given effect to for the purposes of the justiciable question of property which was the issue here. What was significant was the high political importance with resultant possibilities concerning access or publication of those communications. This was nothing really to do with property and paper; but to do with the content.
54. The appellant pointed to the following matters as showing Commonwealth property in the records, posing the question: “Do these facts characterise these documents as property of the Commonwealth?”:

(a) first, the nature and incidents of the office of Governor-General of the Commonwealth are such that all property created or received by the holder of that office in its performance is property of the Commonwealth of Australia;
(b) secondly, ss.2, 3 and 61 of the Constitution operate conformably with the constitutional settlement concerning the public and private property of the Sovereign in England and Wales; and records of a public nature which are the property of the Queen are “Crown property” which cannot be dealt with by the Queen as personal property;

(c) thirdly, the text, structure and legislative history of the [Archives Act] and the secondary materials support a construction of the Act such that all records created or received by the Governor-General in the performance of his or her office are “Commonwealth records”; but which avoids subjecting the Governor-General personally to any obligation to part with possession of such documents including to the National Archives; and

(d) fourthly, the construction for which the Appellant contends is consistent with directly analogous United States authority applying the common law of property and chattels to presidential records which had been decided during the debates concerning enactment of the [Archives Act].

55. The appellant relied on Nixon v Sampson 389 F. Supp. 107 (1975). In that case Judge Richey of the United States District Court, District of Columbia, held that former President Nixon did not own the “Presidential materials and tape recordings”, which were estimated to comprise 42 million items. The court applied the general principle in United States v First Trust Company of St Paul [1958] USCA8 26; 251 F.2d 686 (1958) that that which is generated, created, produced or kept by a public official in the administration and performance of the powers and duties of a public office belonged to the government and may not be considered the private property of the official. The court held, relevantly, that former President Nixon’s assertion of ownership was refuted by the very concept of the Office of the President in that the President was a servant of the people and did not embody the nation’s sovereignty, which remained at all times with the people.
56. The appellant referred to its (so-called) alternative case to the effect that the primary judge erred in creating a false dichotomy between the Governor-General and the official establishment of the Governor-General in order to determine the issue, this being judicial review.
57. The primary judge, the appellant submitted, erred because he should have sent the matter back to the decision-maker to proceed by asking the right question, not informed by a false dichotomy. This was not developed in oral submissions.
58. At [142], the primary judge had said:

…The Act plainly draws a distinction between the records of the official establishment of the Governor-General and the Governor-General himself or herself. In my view, the intention was to have the provisions of the Act, dealing with such matters as the open access period, apply to records of the official establishment of the Governor-General, but to leave to any particular Governor-General the option of placing his or her private or personal records with Archives under arrangements pursuant to s 6(2). To the extent that any such records were also “Commonwealth records” as defined in s 3(1), s 6(3) was inserted to ensure that the provisions relating to “Commonwealth records” applied to such documents even though they happened to have been included in personal papers deposited with Archives under a s 6(2) arrangement.

59. The respondent submitted that the records were a category of document that at the time the Archives Act was framed was very much in the mind of the Parliament and which ultimately found expression in part of the definition in s 3, being the reference to the official establishment of the Governor-General.
60. The scheme of the Act, particularly in the definition of the archival resources of the Commonwealth in s 3(2), acknowledged that there would be documents that should form part of the Archives because they were important to the history or the government of Australia, but were not Commonwealth records. The evidence before the Court was that since Sir John Kerr, all of the Governors-General had proceeded on the footing that their papers were records of that very kind, which was why they had been submitted to the Archives pursuant to s 6(2) of the Archives Act to be held by the Archives pursuant to special arrangements, and not subject to the access provisions in Pt V.
61. If the appellant were right, the respondent submitted, then from the moment these records came into existence, it had been within the hands of the Prime Minister and Minister to release them publicly. That was the effect of s 56. But the idea that immediately upon a change of government all of the records of this kind could be disclosed at the discretion of the Executive government of the day was one, the respondent submitted, that should not lightly be embraced.
62. The respondent submitted that some of the appellant’s submissions focused upon whether records were of a kind made or received in the conduct of the affairs of the office of the Governor General. This was to adopt the provenance criterion which had been rejected in the enacted form of the Archives Act, as noted by the Australian Law Reform Commission in Report No 85, Australia’s Federal Record: A Review of Archives Act 1983, as follows:

8.13 The use of a property based definition such as that in section 3(1) is not universal in archival legislation. The most common alternative is an administrative provenance definition, such as was proposed in the original drafting instructions for the Archives Bill in 1974. The suggested formula was ‘all records of any kind made or received by any Australian [ie Commonwealth] Government agency in the conduct of its affairs’. However, successive drafts of the Bill in 1974–75 moved from a provenance definition through a custodial definition (‘a record that is held in official custody on behalf of the government’) to the present property definition. Anecdotal evidence from those involved in drafting the legislation is that the property definition was preferred because

• ownership was a term which was generally understood and which defined clearly a body of material to which the legislation would apply
• as owner of the records the Commonwealth already exercised many of the rights (for example, in relation to custody, disposal and public access) proposed to be included in the legislation
• if a definition other than that of ownership was to be adopted, confusion might arise between records which fell within the definition in the legislation and those over which the Commonwealth claimed a right of ownership
• the strong opposition in some quarters to the inclusion in the legislation of provisions for the recovery of Commonwealth records made a property definition desirable so that recovery could be pursued outside the legislation on the basis of common law ownership rights.

63. The kinds of rights that the Archives Act identified for particular regulation where a record was a Commonwealth record were possession, disposition, destruction, transfer. Those were the rights that the Act fixed upon as relevant to the regime that it created. The respondent submitted that those were the matters to which the Act directed attention when one asked the question –does particular property belong to the Commonwealth? Was it property of the Commonwealth? Or was it property of someone else, here the Governor-General?
64. The respondent submitted the primary judge looked at a range of considerations that bore upon both how the documents came into existence but also how they had been treated in the past, whether it had been a practice for Governors-General to take these documents with them when they left office. That was, the primary judge thought, persuasive and it was reflective of the notion that the right to possess the document asserted by all of these previous Governors-General as they left office was one important indicium when one looked to ownership.
65. To the extent that the function of the office holder, which would be relevant on a provenance definition, bore on the question, the question was not as stark as: “did the property come into existence in the performance of a function or duty of the office?” because that would be to shift completely to a provenance based definition. It was not the test that the Act adopted to require the Court or the Archives to look at the content of each document and assess whether what was being written in that document was connected with the discharge of functions. The ownership question was a different one and did not depend upon an analysis of that kind.
66. In paragraph (a) of the definition of “Commonwealth institution”, unlike all of the other paragraphs in the definition where the whole of the relevant body was brought within the definition of a Commonwealth institution, Parliament did not choose there to say: means “the Governor-General”, but instead: means “the official establishment of the Governor-General”. That phrase was not defined in the Act and was not used in any other Commonwealth legislation. It was not a term of art, and could therefore only be sensibly given meaning by reference to the statutory context and legislative history. At [139] of the reasons of the primary judge, the respondent submitted, the Court accepted the submission advanced by the Archives below that the official establishment referred to persons who assisted and supported the Governor-General’s performance of official duties, namely, the Official Secretary and his or her staff.
67. The respondent submitted Parliament was contemplating that there would be a demarcation between the official establishment on the one hand and the Governor-General personally on the other.
68. The principal task of statutory construction, the respondent submitted, was to identify where that line was to be drawn. It would not be to read these definitions coherently to say that documents which were not part of the official establishment of the Governor-General nevertheless were brought within the Act because they were property of the Commonwealth objectively.

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 10)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 8)

By Dr George Venturini  

In Hocking v. Director-General of the National Archives of Australia [2019] FCAFC 12 (8 February 2019) Mr. B. Walker SC with Mr. T. Brennan appeared for the appellant and Dr. S. Donaghue QC SG with Mr. C. Lenehan and Ms. D. Forrester for the respondent.

The Court ordered that the appeal be dismissed and that the appellant pay the respondent’s costs in the sum of $30,000.

Justices Allsop CJ and Robertson J gave the following reasons for their judgement, while Justice Flick dissented.

“Introduction

1. This appeal is from the order of the primary judge made on 16 March 2018 dismissing an originating application dated 20 October 2016. That application, as amended, concerned “the records indexed at the National Archives of Australia as AA1984/609” (records) and sought a declaration that those records were Commonwealth records within the meaning of the Archives Act 1983 (Cth).
2. It was an agreed fact between the parties that the records comprised six parts which consisted of the originals of correspondence received by, and contemporaneously made copies of correspondence sent by, the former Governor-General Sir John Kerr or his Official Secretary to and from The Queen by means of Her Private Secretary. It was further agreed that the records comprised letters and telegrams and certain attachments to that correspondence (for example, newspaper clippings and letters), the period of the correspondence being 15 August 1974 to 5 December 1977.
3. The records were lodged with the National Archives of Australia (the Archives) on 26 August 1978 by Mr David Smith, as Sir David then was, in his capacity as Official Secretary to the Governor-General.
4. Access by the appellant to those records was refused by letter dated 10 May 2016, that letter stating that the records were not a “Commonwealth record” and were not subject to the access provisions of the Archives Act. Relevantly, the letter stated:

Record AA1984/609

5. Record AA1984/609 was deposited on 8 September 1978. It is not a ‘Commonwealth record’ and is not subject to the access provisions under the Archives Act 1983 (Archives Act) for the same reasons as Record M4513.
6. The mere fact that the documents may have connection with office (sic) of the Governor-General does not mean that such documents are the property of the Commonwealth. Nor is it correct to conflate the role of the Governor-General with that of ‘the Commonwealth’.
7. Record AA1984/609 remains under the effective and immediate control of the Office of the Governor-General through the Official Secretary of the Governor-General. The NAA has custody of the record in accordance with ss 5(2)(f) and 6(2) of the Archives Act. It does not have power or authority to give access to the record other than in accordance with the instrument of deposit and arrangements specified by the offices of the Queen and the Governor-General.
8. The proceedings at first instance were in the nature of judicial review of the decision dated 10 May 2016, this Court having jurisdiction under s 39B of the Judiciary Act 1903 (Cth), although the appellant sought a declaration “that the records indexed at the National Archives of Australia as AA1984/609 are Commonwealth records within the meaning of the Archives Act 1983.”
9. The Court was not at first instance, and is not on appeal, concerned with the merits of the decision or whether it would be beneficial to the appellant or others to have access to the records. Section 43 of the Archives Act, allowing for applications to the Administrative Appeals Tribunal for review on the merits of certain decisions, is not applicable.
10. Both at first instance and on appeal the parties agreed it was unnecessary for the Court to examine the records in order to determine the issues.
11. The proceedings concern only the legal correctness of the decision of the Archives that the records were not a “Commonwealth record” as defined in s 3(1) of the Archives Act on the basis that the records were not “the property of the Commonwealth”. The proceedings do not concern whether the records should be made available as a matter of public interest or whether or not a ground of exemption under s 33 could be made out. It is clear that the records relate to the history and government of Australia.
12. The appeal is to be determined as a matter of Australian law, principally the Archives Act, and therefore we have considered and construed the provisions of that Act.”

The Notice of Appeal

…

10. The grounds of appeal were as follows:

Grounds of appeal

1. The trial judge erred at TJ [107] in deciding that the documents comprising record AA1984/609 (“Records”) were not the property of the Commonwealth but were rather the personal property of Sir John Kerr, when:

(a) the trial judge should have found that the Records or some of them were the property of the Commonwealth because they were created or received by the Governor-General in the performance of his office and concern the government of the Commonwealth of Australia;
(b) further, and in the alternative, to the extent that the perceptions as to ownership of the Records of Sir John Kerr, the Queen or the Commonwealth were relevant to determining whether any of the Records were the property of the Commonwealth, as found at TJ [107], the trial judge should have inferred that:

(i) Sir John Kerr, Buckingham Palace and other relevant Commonwealth officials perceived that correspondence between Sir John Kerr acting in his capacity as Governor-General and the Queen was government property; and
(ii) Sir John Kerr, Buckingham Palace and other relevant Commonwealth officials perceived that there existed a governmental convention by which Sir John Kerr as Governor-General and later a former Governor-General was entitled to retain custody of the Australian records of that correspondence and, subject to any contrary direction by Buckingham Palace or the Official Secretary to the Governor-General to determine the conditions upon which access to those records was to be had once custody was transferred to a relevant archival institution.

2. The trial judge erred at TJ [155] in relation to the Applicant’s alternative case. The trial judge should have found that the National Archives of Australia (Archives) had, in error which was jurisdictional, decided that the Records were not the property of the Commonwealth by reference to whether they were a “personal and confidential communication” on the one hand or “a formal or official communication” on the other.

Other errors

3. The trial Judge erred at TJ [118] in reasoning that clear and explicit language would be required to produce an outcome which involved significantly different rules of access applying to archival resources of the Commonwealth and the law of the United Kingdom which the trial judge found applied to records of the correspondence between the Governor-General and the Queen.
4. The trial Judge erred at TJ [128] in reasoning that it was not a necessary consequence of his finding that the Records were the personal property of Sir John Kerr that a successor in title to Sir John Kerr has a present entitlement to retrieve from Archives and destroy those Records.
5. The trial Judge erred at TJ [129] in holding there was no evidence to indicate that any of the 11 cartons lodged by Sir John Kerr with Archives and later withdrawn from Archives by him included correspondence of the character of the documents constituting the Records. The trial judge should have found, on the basis of a file note of the Director-General of Archives dated 22 June 1998 that at least one of those cartons included records of the character of the Records.

Only Ground 1 was pressed. Ground 2 was abandoned and Grounds 3-5 were described in the appellant’s written submissions at [6] as concerning factual errors of no consequence independent of Ground 1.

The Archives Act

…

11. The Archives Act commenced on 6 June 1984. It will be necessary a little later to describe its provenance and history, by reference to extrinsic materials, as a matter of context. But we begin with the text.
12. A central provision is s 3(2) which states that the “archival resources of the Commonwealth” consist of such Commonwealth records and other material as are of national significance or public interest and relate to, amongst other things, the history or government of Australia; the legal basis, origin, development, organisation or activities of the Commonwealth or of a Commonwealth institution; or a person who is, or has at any time been, associated with a Commonwealth institution.
13. “Commonwealth institution” is defined to mean, amongst other things, “the official establishment of the Governor-General”. The Governor-General himself or herself is not a “Commonwealth institution” as defined.
14. There is no doubt that the records presently in issue are included in the archival resources of the Commonwealth. The question on which this case turns is whether they are a “Commonwealth record” as defined in s 3(1) as follows:

Commonwealth record means:

(a) a record that is the property of the Commonwealth or of a Commonwealth institution; or
(b) a record that is to be deemed to be a Commonwealth record by virtue of a regulation under subsection (6) or by virtue of section 22;
but does not include a record that is exempt material.

“Property” is not defined. As we have said, “Commonwealth institution” is defined to mean, amongst other things, “the official establishment of the Governor-General”. It is also defined to include “an authority of the Commonwealth”. There is no definition of “the official establishment of the Governor-General”.

15. The Archives Act states its objects:

…

2A Objects of this Act

The objects of this Act are:

(a) to provide for a National Archives of Australia, whose functions include:

(i) identifying the archival resources of the Commonwealth; and
(ii) preserving and making publicly available the archival resources of the Commonwealth; and
(iii) overseeing Commonwealth record-keeping, by determining standards and providing advice to Commonwealth institutions; and

(b) to impose record-keeping obligations in respect of Commonwealth records.

16. By s 5(2), one of the functions of the Archives is to ensure the conservation and preservation of the existing and future archival resources of the Commonwealth. Another function of the Archives is to determine the material that constitutes the archival resources of the Commonwealth.
17. Some attention was directed in argument to the following powers of the Archives:

6 Powers of Archives

…

(2) Where, in the performance of its functions, the Archives enters into arrangements to accept the care of records from a person other than a Commonwealth institution, those arrangements may provide for the extent (if any) to which the Archives or other persons are to have access to those records and any such arrangements have effect notwithstanding anything contained in Division 3 of Part V.

(3) Where an arrangement entered into by the Archives to accept the care of records from a person other than a Commonwealth institution relates to a Commonwealth record, then, to the extent that that arrangement, in so far as it relates to such a record, is inconsistent with a provision of Part V, that provision shall prevail.

18. By virtue of the transitional provisions in s 70, where records were in the custody of Australian Archives immediately before the commencement of the legislation under arrangements by which the custody of the records was accepted from a person other than a Commonwealth institution by the Commonwealth, those arrangements (including any provision of those arrangements concerning access to or disposal of those records) have effect as if they were made after that commencement by that person with the Archives and s 6(2) applies accordingly. By virtue of s 6(3) a later arrangement which relates to a Commonwealth record is to that extent subject to Part V of the Archives Act – Commonwealth records.
19. It is convenient at this point to set out the definition of “authority of the Commonwealth” in s 3(1), as follows:

authority of the Commonwealth means:

(a) an authority, body, tribunal or organization, whether incorporated or unincorporated, established for a public purpose:

(i) by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory other than the Northern Territory;
(ii) by the Governor-General; or

(iii) by, or with the approval of, a Minister;

(b) the holder of a prescribed office under the Commonwealth; or
(c) a Commonwealth-controlled company or a Commonwealth-controlled association;
but does not include:

(d) a court;

(e) the Australian Capital Territory;

(f) a body established by or under an enactment within the meaning of the Australian Capital Territory (Self-Government) Act 1988;

(g) the Northern Territory; or

(h) the Administration of an external Territory.

It is clear that the Governor-General is not an authority of the Commonwealth within that definition. By s 2 of the Australian Constitution, a Governor-General is appointed by the Queen and is Her Majesty’s representative in the Commonwealth. As French CJ, Crennan, Kiefel and Bell JJ said in Kline v Official Secretary to the Governor-General [2013] HCA 52; 249 CLR 645 at [33]:

…The Governor-General is appointed by Letters Patent, pursuant to s 2 of the Australian Constitution, and therefore does not hold office in accordance with the provisions of an enactment of the federal Parliament or an Order-in-Council…
(Footnote omitted.)

20. Turning to the operative provisions of the Archives Act, s 31 applies to a Commonwealth record that, relevantly, is in the open access period and is in the care of the Archives. By s 3(7) the open access period for a record which came into existence before 1980 is 1 January in the year that is 31 years after the creation year. By s 31(1), subject to Part V, the Archives must cause the record to be made available for public access. No question has yet arisen as to whether or not the records in issue are or contain an exempt record. For example, there has been no determination of whether or not the records contain information or matter the disclosure of which under the Archives Act would constitute a breach of confidence within s 33(1)(d). If the records are a Commonwealth record the issue of whether or not they are or contain an exempt record would be for another day.
21. By s 36, where the Archives is required by Part V to cause a record to be made available for public access, subject to that Part, any person is entitled to access to the record.
22. By s 56(1), the Minister may, in accordance with arrangements approved by the Prime Minister, cause all records in a particular class of Commonwealth records not in the open access period to be available for public access. By s 56(2), the Minister may, in accordance with arrangements approved by the Prime Minister, cause Commonwealth records to be made available to a person in such circumstances as are specified in the regulations notwithstanding that the Commonwealth records concerned are not otherwise available for public access under the Archives Act. As is evident, both of those provisions depend on whether or not the records in question are Commonwealth records.
23. Section 58 states that nothing in the Archives Act prevents a person from publishing or giving access to records otherwise than in pursuance of that Act where he or she can properly do so or is required by law to do so.

History and context

24. The relevant history and context of the Archives Act are as follows.
25. Before the enactment of the Archives Act, the Australian Archives (formerly the Commonwealth Archives Office) had been operating for over thirty years under administrative arrangements first laid down during World War II.
26. As explained by the primary judge at [30] and following, the Archives Bill was introduced in the Commonwealth Parliament in 1978. By that time, as referred to at [62] below, the concept of “Commonwealth record” had moved away in successive draft bills from a functional or administrative provenance definition, then from a custodial definition, to a property definition.
27. In that Bill, “Commonwealth record” relevantly meant “a record that is the property of the Commonwealth or of a Commonwealth institution” but by cl 18(1)(a) it was expressly said that Division 2, headed “Dealings with Commonwealth Records”, and Division 3, headed “Access to Commonwealth Records”, did not apply to “records of the Governor-General or of a former Governor-General”. By cl 18(2), a certificate signed by the Official Secretary to the Governor-General certifying that a record was one of the kind referred to in cl 18(1)(a) established conclusively that it was such a record.
28. The Explanatory Memorandum stated that special provision had been made for the records of the Governor-General, amongst others. It was said that those records may be transferred to the custody of the Archives on terms and conditions agreed on between the Archives and those responsible for their custody.
29. Debate on the 1978 Bill was suspended and it was referred to committee for inquiry and report. The Bill was referred to the Standing Committee on Constitutional and Legal Affairs on the question of access since that Committee was also inquiring into the Freedom of Information Bill 1978. There was also a reference to the Standing Committee on Education and the Arts, on the scope of the collection of the Archives.
30. The latter Committee expressed the view at [5.16] that the exclusion of Vice-Regal records was acceptable on the grounds of preserving the traditional independence of that arm of government from the Executive. That Committee sought to allay concerns that the bill extended to personal papers.
31. The Senate Standing Committee on Constitutional and Legal Affairs said this:

33.22 In the case of records of the Governor-General other considerations are involved. The Governor-General is in direct correspondence with the Monarch, and consequently identical holdings will exist in Britain and in Australia of the correspondence passing between them. In Britain, royal documents are not made available until sixty years has elapsed since the date of creation (though special access is sometimes given earlier than this date). This consideration will apply to only a very small number of vice-regal documents. Apart from that, however, the Director-General of Archives was not able to suggest additional justifications for the exclusion of these records, indicating to the Committee that it was a matter of government policy that the records described in Part V should be excluded.

33.23 These explanations may suggest the need for special treatment to be given to a few categories of records, such as judges’ notebooks and correspondence with the Monarch, but they do not to our mind suggest the need for the total exclusion of broad categories of documents from the access provisions of the Bill. The purpose of the Archives Bill is to guarantee that our national history can be both preserved and reconstructed. This guarantee must exist with respect to the operation of the Head of State, of the Legislature and of the Judiciary, much as it exists in relation to the operation of departments. We are not dealing in the Archives Bill with contemporary access to records, where there may exist special reasons for allowing organs of the State like the Legislature and the Judiciary to regulate access. Rather we are dealing with access to records that are thirty years of age. To argue that the Legislature and the courts should regulate access to their own documents is to disguise the fact that at the time access is desired the particular legislature or court that would decide upon access is constituted quite differently to that of the time at which the document was created; it is a fiction to suppose that the institution still has some association with, or understanding of, the records that a trained and professional archivist would not have.

(Emphasis added. Footnotes omitted).

32. That Committee relevantly recommended, at [33.29], that Part V, Division 1 of the Archives Bill should be amended so that no category of records was excluded from the open access provisions of the Bill.
33. In 1981, an amended form of the Archives Bill was introduced into Parliament. The Archives Bill 1981 retained the definition of “Commonwealth record” and also retained the exclusion from Div 2 and Div 3 of records of the Governor-General or of a former Governor-General: cl 18. It did however contain provision in cl 21 for the regulations to provide that all or any of the provisions of Div 2 or Div 3, in such circumstances and subject to such conditions as were prescribed, were to apply to all or any of the records referred to in cls 18, 19 and 20.
34. According to the Explanatory Memorandum and the Supplementary Explanatory Memorandum to the Archives Bill 1981, special provision had been made for the records of the Governor-General. It was said that it would be inappropriate, however, for the more explicit provisions, which gave the Archives, as an arm of the Executive, some degree of regulatory power over the treatment of records, to be made applicable to the records of those arms of the Government which traditionally enjoyed a certain degree of independence and autonomy. The Vice-Regal records were specified as one example. A certificate signed by the Official Secretary to the Governor-General would establish conclusively that a record was a Vice-Regal record.
35. In 1983, the 1981 Bill was amended and reintroduced into Parliament. The Archives Bill 1983 contained a definition of “Commonwealth institution” to mean, amongst other things, the official establishment of the Governor-General. The specific provision for records of the Governor-General, the former cl 18, was not reproduced. Clause 18 no longer included the exclusion from Div 2 and Div 3 of records of the Governor-General or of a former Governor-General.
36. In the Explanatory Memorandum to the Archives Bill 1983 (Circulated by authority of the Honourable L.F. Bowen, Deputy Prime Minister and Minister representing the Attorney-General for and on behalf of the Minister for Home Affairs and Environment the Honourable Barry Cohen M.P.) and the Supplementary Explanatory Memorandum (Circulated by authority of the Attorney-General, Senator the Honourable Gareth Evans for and on behalf of the Minister for Home Affairs and Environment the Honourable Barry Cohen M.P.) it was said:

The provisions of the Bill extend to the records of the official establishment of the Governor-General…

37. The following was said about relevant definitions:

A “Commonwealth institution” which means the official establishment of the Governor-General …. The Archives legislation concerns itself principally with the records of Commonwealth institutions.

A “Commonwealth record” which means a record, other than a Cabinet notebook, exempt material and certain records internal to the operation of the Archives itself (e.g. the Registers and Guide maintained in accordance with Part VIII), which is the property of the Commonwealth or a record deemed under subclause 3(6) to be a Commonwealth record. It is the purpose of the Archives legislation to provide for the preservation and use of Commonwealth records and for related purposes and to establish the Archives as the Commonwealth institution with the duty to do this.

38. In a revised Explanatory Memorandum, the then new cl 6(3) was explained as follows:

The purpose of this clause is to ensure that normal government controls over Commonwealth records, will apply to any Commonwealth records which might appear in collections of personal papers deposited with the Archives.
The amendment does not in any way affect the freedom of a donor to determine conditions of access to personal papers.

39. In the Second Reading Speech the Attorney-General, Senator the Honourable Gareth Evans, said:

The Bill institutes arrangements for the proper management and disposition of the vast body of records generated by Commonwealth agencies. While it breaks some new ground, it is chiefly designed to replace existing ad hoc decisions and conventions which have been relied upon for the last thirty years, with a coherent framework within which comprehensive and accountable arrangements can be made. It provides a statutory basis for the activities of the Australian Archives and confirms that organisation as the agency chiefly responsible for developing and implementing the broad management action which will be necessary.

Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 9)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 7)

By Dr George Venturini  

On 22 October 2016, while the case was before Justice Griffiths, Professor Hocking wrote again about her case: The National Archives of Australia is refusing to release secret letters between Kerr and the Queen, claiming that they are ‘private’ and not official Commonwealth records. The Palace letters are embargoed until at least 2027, with the Queen’s private secretary holding a final veto over their release even after that date. It is entirely possible that they will never be released.”

This is why – she explained – she had launched an action against the National Archives of Australia in the Federal Court, calling for the release of the Palace letters.

A team of senior lawyers, working on a pro bono basis, was leading the landmark case, in an action which remained the only avenue available to interested Australians to secure the release of ‘the Palace letters’, the final piece in the puzzle of the hidden history of the dismissal.

There followed a plaintive lament: that the letters remain secret “… is wrong. It should not be for the Queen to decide when we can know and have access to critical documents in our own history. We all deserve to know the truth of the dismissal and what really happened at that time.” (J. Hocking, The Palace letters, 22 October 2016).

Questions could be asked: What is the ultimate nature of the relationship between Australia and the Queen? To what extent, subject to a doubtful nature of that relationship, could anyone say that those documents are part of “our” – meaning Australia’s – ‘history” as if it were an independent country, totally uncompromised by the relationship with the English crown established at the time invasion?

The complainant view is nothing but a petitio principii, in other words: a form of fallacious reasoning in which the conclusion has been assumed in the premises, what is plainly called begging the question. 

It really does not matter how often it is said that Australians should own their own history; that the decision to withhold the correspondence between the Queen and the Governor-General prevents them all from knowing the full story of the dismissal of the Whitlam government.

It would not take a furious moron – a large choir, perhaps? – to fight back with a: “Who cares?”

Five weeks into the case, Professor Hocking returned to the issue as “A matter of [Australian] national history.” What she found important is that “the release of the Palace letters will now be determined by an Australian court and according to Australian law – and not by the Queen, ‘a foreign monarch’ in the words of [then] Prime Minister Malcolm Turnbull.”

In the view of the writer this was “a dramatic development, a reassertion of Australian sovereignty over these critical documents in our history, despite long-standing claims of Royal control.”

In addition to the support of a team of lawyers working on a pro bono basis an important crowd funding campaign had been launched to raise funds to provide some protection against the possibility of an adverse cost order. [https://chuffed.org/project/release-the-palace-letters]. The response to the campaign had been exceptional and had already reached the half-way mark in the target.”( J. Hocking, The Palace Letters Case: ‘A Matter of our National History’, 29 November 2016).

The ‘Palace letters’ case would, in the words of Professor Hocking, “[bring] to light a lingering relic of colonialism few knew existed – the correspondence between the British monarch and the Governor General – which is closely guarded as a post-colonial Royal privilege and kept secret even from the Australian Prime Minister.” The discovery of such surviving ‘relic of colonialism’ and ‘continued existence of this arcane imperial political presumption is astounding and completely at odds with a modern parliamentary democracy.’ It was urgently hoped that “the ‘Palace letters’ case would end this colonial exemplar of Royal secrecy once and for all, by ensuring that the public access provisions of the Archives Act are applied to all official records, including the letters between the Queen and the Governor General. For the first time since federation, this correspondence will no longer be controlled by the British monarch and will be brought under existing Australian law, to be released after 30 years in accordance with the Archives Act if they are found to be official, not personal, records.”

It was correctly observed that “the implications of this case are considerable and go beyond the immediate issue of access to secret material relating to the dismissal of the Whitlam government, important though that clearly is.”

“In fact, the Palace letters case raised fundamental and broader issues of Royal secrecy in a parliamentary democracy, in particular of the practice of members of the Royal family in the United Kingdom to engage in secret communications with government about political matters to which the public is denied access. This has been the focus of recent concern in the United Kingdom, where the similar designation of documents in the Royal archives as ‘personal’ and ‘private’ has long ensured their protection from public view. [http://www.thetimes.co.uk/article/mi5-shared-its-secrets-now-the-royals-must-9t8j9595l]”

Yes, all this eminently desirable and logic. But were there not assumptions?

Professor Hocking repeated her claim that “The palace treats Australia as the colonial child not to be trusted with knowledge of its own history” in an article published on 7 September 2017.

These letters, between the governor general and the Queen, her private secretary and Prince Charles, in the weeks before the dismissal are held by our National Archives in Canberra – not for access by us, but for protection from us. Unlike commonwealth records which are open after 30 years, the palace letters have been designated “personal” records and on the instructions of the Queen they are embargoed until at least 2027 with her private secretary retaining a veto even after that date. This is a concerning situation for an independent nation, one made even more so by the passage of time. It is now more than 40 years since the dismissal of the Whitlam government and the palace continues to treat us as the recalcitrant colonial child, not to be trusted with such a dangerous thing as knowledge of our own history.

There is no doubt that these letters are of the greatest historical significance. We know this from extracts of six of the palace letters which I identified among Kerr’s papers in the archives, and also from a rare glimpse into Kerr’s communications with the Queen’s private secretary, Sir Martin Charteris, detailed by Kerr in his 1980 journal. Kerr refers there to “Charteris’ advice to me on dismissal” and to his communications with Charteris about his concern that he himself could be dismissed – that Whitlam might recall him should he become aware that Kerr was secretly considering dismissing him as prime minister.

Kerr’s records show that he had also confided to Prince Charles in September 1975, one month before supply was blocked in the Senate, that he was considering dismissing Whitlam and was therefore concerned for his own position. Charles duly relayed this to Charteris, while expressing dismay at the prospect – not of Whitlam’s dismissal, but of Kerr’s possible recall – telling Kerr: “Bur surely Sir John, the Queen should not have to accept advice that you should be recalled … should this happen when you were considering having to dismiss the government.” According to Kerr’s records, Charteris then wrote to Kerr in early October, reassuring him that if “the contingency to which you refer” should arise and if Whitlam moved to recall him as governor general, then the palace would “delay things”.

This communication from the Queen’s private secretary to the governor general, secret from the prime minister, is politically and constitutionally shocking. It reveals the palace to be in deep intrigue with Kerr to protect his tenure as governor general in the weeks before the dismissal, unknown to the prime minister who alone is responsible for advising the Queen on the choice of governor general. (J. Hocking, The palace treats Australia as the colonial child not to be trusted with knowledge of its own history, 7 September 2017).

One of the most remarkable outcomes of these proceedings is that it has secured the release by Buckingham Palace of two ‘personal’ letters between Kerr and the Queen’s private secretary written in 1976, in a rather counter-intuitive effort to support its claim that the ‘Palace letters’ are validly designated personal and should remain closed. The selective release of some apparently personal letters by Buckingham Palace draws into serious question its use of the label ‘personal’ in general for all correspondence between the Queen and the Governor-General, regardless of content. It does not appear to have occurred to either the Palace or their emissaries that such a ready breach of the label ‘personal’ only highlights its inappropriate use when it can be so readily overturned if deemed to suit its purposes.

The case has also shown a rare light on the inner workings of the office of Governor-General and the colonial presumptions underpinning it, much of which would shock those who believe that even as a Constitutional monarchy we have long since been freed of the residual colonial ties. Quasi-colonial servility is alive and well in Yarralumla. The mere fact that the Queen can still prevent us from seeing her correspondence with the Governor-General, highlights the vice-regal relationship as one of the few remaining ‘colonial relics’ with lasting impact on Australian governance and history.

In summing up Professor Hocking’s case that the Palace letters are Commonwealth records, Mr. Antony Whitlam QC, pointed to the extraordinary corollary of the Archives’ claim that the Palace letters are personal and are not owned by the Commonwealth. If they are not owned by the Commonwealth, Whitlam asked, then who does own them? The Archives contention is quite remarkable – the Palace letters are owned by Mrs. Bashford. And who, you might ask, is Mrs. Bashford? She is the daughter of Sir John Kerr’s second wife, who inherited her mother’s estate and with that, apparently, Kerr’s residual estate. So, while Australians are denied access to the Palace letters according to the Queen’s embargo, Mrs. Bashford alone has access to them and ultimate control over them. She could withdraw them from the Archives – and indeed has already revised the conditions on them – she could destroy them, sell them to a foreign government or even release them to Julian Assange and WikiLeaks. Such is the strange predicament of the Palace letters as ‘personal’ records and not owned by the Commonwealth.

A final intrigue came with a parallel exchange being played out in the Parliament while the case was proceeding. The Labor member for Bruce, Julian Hill, was pursuing the Prime Minister, Malcolm Turnbull, over Turnbull’s rash promise four years ago that he would ‘resolve the impasse’ over the letters by personally approaching the Queen and ask her to release them.

Mr. Hill diligently pursued Turnbull over his forgotten promise to ask the Queen to release the Palace letters.

On the other hand, Mr. Hill said on 21 November 2016: “I hope that the court succeed as I cannot support the Prime Minister’s suggestion of a formal approach to the Queen asking her to release our own national records. What a toadying, unedifying, humiliating lot of colonial nonsense!” (Julian Hill MP – The Palace Letters | Facebook).

Mr. Hill placed a question on notice to [then] Prime Minister Turnbull in the House on the final sitting day of Parliament in 2016, asking whether the Prime Minister had approached the Queen seeking the release these letters and if so, what her response had been. For the following eight months Turnbull simply refused to answer, despite being twice prompted by the Speaker to do so. Finally, on the eve of the hearing in the Palace letters case in September 2017, the [then] Prime Minister’s Office responded: “Discussions/communications between the Prime Minister and Her Majesty the Queen are confidential.” Turnbull’s resort to Royal secrecy could not have been more fitting, and totally deserving of Mr. Hill’s qualification: toadying, unedifying, humiliating lot of colonial nonsense.

Professor Hocking pretended to believe that Turnbull ‘republicanism’ should be regarded as something other than way to notoriety, public power and fulfilment of what he might have considered a Calvinistic predestination.

She said: “It seems that not even our avowedly republican Prime Minister can escape the vestiges of colonialism that continue to deny us access to our own history. It’s time we ended these residual ties of dependency, secrecy and colonial deference, and became an Australian republic.” (J. Hocking, ‘Secret “Palace letters” not so secret after all’ and where is Malcolm?, 13 September 2017).

Lead barrister, Antony Whitlam QC, addressed the central question of the nature of “personal” as opposed to “commonwealth” records, arguing that correspondence between the Queen and her representative in Australia could not be considered “personal”. “It cannot seriously be suggested that there was a personal relationship between the Queen and Sir John Kerr.” Whitlam contended that “personal records” would be records that were “unrelated to the performance of Sir John’s official duties” and would not extend to Kerr’s correspondence with the palace prior to his dismissal of the Whitlam government in November 1975.

Thomas Howe QC for the National Archives, however, described the letters as Kerr’s “personal property” for him to dispose of as he wished. The letters were deposited with the archives by Mr David Smith, the governor general’s official secretary, after Kerr left office. However, Howe contended, in doing so Smith was acting as an “agent” of Kerr and on his instructions, “They are the property of Sir John Kerr personally, not the commonwealth or the official establishment.”

It was intrigue upon intrigue as Howe then detailed the secret late-night photocopying by David Smith of a second set of palace letters, a set requested by Kerr to “refresh his memory” while writing his memoirs in France after his resignation as governor general. That Smith undertook this task in secret and late at night, Howe argued, pointed to the private nature of the letters which necessitated therefore that Smith take copies after hours – making use of the Government House photocopier, paper and letterhead when doing so. The very fact that Kerr created these copies and passed them to his heirs for deposit separately in the archives, Howe argued, indicated their “personal” nature.

Adding to the tangle is that David Smith himself was closely involved in writing the palace letters, which highlights a slightly different aspect to their status as “official records” – they reflect the relationship between the governor general and his official secretary in their preparation and the relationship between the Queen and her representative in their communication. (J. Hocking, The palace treats Australia as the colonial child not to be trusted with knowledge of its own history – A REPOST from 11 September 2017, 16 January 2018).

Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 7)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 5)

By Dr George Venturini  

Explicitly, Justice Griffiths declared that he could “not accept the applicant’s core submission to the effect that the correspondence comprising AA1984/609 should be viewed as the property of the Commonwealth simply because its subject matter relates to the performance of the Governor-General’s role and function. First, in my respectful view, that submission adopts an unduly broadbrush approach to the role and responsibilities of the Governor-General. The position of the Governor-General involves the exercise of a wide range of powers and functions, some of which involve conduct and actions taken other than on the advice of the Prime Minister, a Minister or the Executive Council. Notably, in Kline, the plurality drew attention to some of the unique features of the role of Governor-General when their Honours said at Para. 38. The Governor-General, in common with judges, takes an oath to undertake his or her functions without fear or favour. However, as mentioned, the position of the Governor-General calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council. (Para., 119).

Secondly, I accept Archives’ submission that the personal and private correspondence between a Governor-General and The Queen does not involve the Governor-General exercising the executive power of the Commonwealth within the meaning of s 61 of the Constitution. For the reasons given above, that correspondence has a strong sui generis quality which places it apart from much of the other correspondence sent or received by a Governor-General. (Para. 120)

Thirdly, I do not consider that resolution of the issues in these proceedings is assisted by reference to authorities in the United States of America which were relied upon by the applicant, concerning the ownership of Presidential materials and tape-recorded conversations involving President Nixon (see, for example, Nixon v Sampson 389 F. Supp. 107 (1975) and Nixon v Administrator of General Services 433 US 425 (1977)). Different constitutional and statutory considerations, as well as well as different conventions, inform the view which has been taken there to the effect that, as a general principle of law, records which are generated, created, produced or kept by a public official in the administration and performance of the powers and duties of a public office belong to the government and may not be considered the private property of the official. (Para. 121).

Fourthly, however, nor do I accept Archives’ submission that the presumption of regularity has some meaningful operation in these proceedings (see [81] above). Archives submitted that the presumption applied so as to produce the result that the various Directors-General who entered into arrangements with various Governors-General concerning the custody of correspondence between a Governor-General and The Queen had authority to enter into those arrangements and, moreover, it should also be presumed that each of those Directors-General held a satisfaction that those records were not the property of the Commonwealth. The presumption of regularity is discussed in cases such as Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164, where McHugh JA said:

The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office… R v Brewer (1942) 66 CLR 535 at 548… And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.

In the circumstances of that case, absent evidence to the contrary, McHugh JA was prepared to apply the presumption of regularity to prove that the secretary of the Western Lands Commission, who executed the grant of a permissive occupancy of land under the Crown Land Consolidation Act 1913 (NSW), had been duly delegated to do so by the Minister acting under s 17A of that Act. (Para. 122).

The presumption has been considered in other cases where the issue has arisen as to whether it can be presumed that a decision-maker, including a delegate, has been properly appointed and made a valid decision notwithstanding the absence of formal evidence of the person’s appointment (see, for example, Ray v Superannuation Complaints Tribunal [2004] FCA 1120; 138 FCR 548 per Goldberg J). (Para. 123).

I accept that the presumption of regularity has a potentially wider operation in public law. For example, in Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649, Gaudron J made the following observations at [22] and [23] in the context of a claim in a judicial review challenge that notices issued by the Deputy Commissioner of Taxation under what was then s 264 of the Income Tax Assessment Act 1936 (Cth) had been issued for an improper purpose (footnotes omitted):

22. It was put on behalf of the respondents that the onus of establishing that a decision was made for an improper purpose lies on an applicant for judicial review and that in the present cases that onus had not been discharged. In particular, it was put that, in determining whether the onus had been discharged, a court should proceed by application of the presumption, embodied in the Latin expression omnia praesumuntur rite et solemniter esse acta, that all things have been done correctly and solemnly. To the extent that presumptions are usefully brought to bear where reasons are provided for decisions the subject of an application for an order of review under the ADJR Act, it may be that the relevant presumption is that embodied in the Latin expression omnia praesumuntur legitime facta donec probetur in contrarium. That presumption, which applies to official acts, is that all necessary conditions and formalities have been satisfied until the contrary is proved. See Jowitt’s Dictionary of English Law, 2nd ed. (1977), at p 1283.

23. The ADJR Act does not make express provision as to the onus of proof in respect of grounds of review. In Brunetto v. Collector of Customs, it was said by Toohey J., in relation to s.5(1)(c) of that Act, that “it is incumbent on the applicant to demonstrate lack of jurisdiction”. Given that there is nothing in the ADJR Act to displace the general rule that it is for an applicant to establish his or her case, the statement in Brunetto is undoubtedly correct, both as to the ground there under consideration and as to the other grounds of review provided by that Act. More particularly and bearing directly on the present cases, there is nothing in the ADJR Act to displace the common law rule that a person impeaching the exercise of a power on the basis of improper purpose bears the onus of establishing that issue. See, for example, as to the common law rule, Municipal Council of Sydney v. Campbell. And, where the subject matter of a decision falls squarely within the terms of a statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made. It is only if the purpose attending the decision must be ascertained by inference from other facts that a presumption of regularity has a role to play. An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power. See Reg. v. Inland Revenue Commissioners; Ex parte Rossminster per Lord Diplock at p 1013. (Para. 124).

Although Gaudron J was in dissent, I respectfully consider that her Honour’s observations represent the law. (Para. 125).

As mentioned above, however, I do not consider that the presumption of regularity assists in resolving the issues in dispute in these proceedings. The applicant did not dispute that the various Directors-General were duly appointed and would enter into valid arrangements for the purposes of s 6(2) of the Act. Moreover, the issue of whether or not correspondence the subject of such an arrangement was properly viewed by the Director-General as not being the property of the Commonwealth (or the property of a Commonwealth institution) falls to be determined by the Court applying appropriate principles of statutory construction relating to the Act. This task is not constrained by the presumption of regularity. It is difficult to see how the presumption of regularity applies in the particular circumstances here so as to establish the Director-General’s satisfaction or state of mind that AA1984/609 was not “a Commonwealth record” as contended by Archives, when there was no statutorily-based archives legislation in place in August 1978. (Para. 126).

Fifthly, I do not consider that Archives’ construction of the Act should be rejected because, on the applicant’s submission, this construction means that the documents comprising AA1984/609 remain the property of Sir John Kerr forever and could, for example, be retrieved and then destroyed or otherwise disposed of by, for example, Ms Bashford. As noted above, the documents constituting M4513 were provided to Archives in June 1998 by Sir John’s eldest daughter, Ms Gabrielle Kibble. Subsequently, Ms Bashford (who is Sir John’s stepdaughter and executrix to Sir John’s widow, Anne Dorothy Kerr), signed various instruments of deposit with the Archives relating to M4513. The applicant submitted that this demonstrated that there was potential for AA1984/609 to be retrieved from Archives and destroyed, or otherwise disposed of, irrespective of the clear national interest in those documents. (Para. 127)

There are several difficulties with that submission. First, in her affidavit dated 9 March 2017, Ms Bashford made clear that when she deposited some of Sir John’s papers with Archives on 29 March 2004, it was not her intention or understanding that her instrument of deposit applied to private correspondence passing between Sir John and Buckingham Palace. Secondly, as Mr Whitlam QC acknowledged, insofar as the documents comprising AA1984/609 are concerned, it could be assumed that, by 29 March 2004, Sir John’s estate had been fully administered (noting that Sir John died on 24 March 1991 and Lady Kerr died on 16 September 1997). Thirdly, the scenario painted by Mr Whitlam QC failed to take into account The Queen’s own interest in the disposal of the documents comprising AA1984/609. Accordingly, I do not consider that this scenario stands in the way of accepting Archives’ construction as correct. (Para. 128)

Sixthly, I do not accept the applicant’s submission (as outlined in [59] above) that an inference should be drawn that Sir John considered that he could not withdraw AA1984/609 from Archives, in contrast with his retrieval of 11 cartons of other papers which he had lodged with Archives. There is no evidence to indicate that any of the 11 cartons included correspondence of the character of the documents constituting AA1984/609. Indeed, an inference might be drawn that Sir John was content to have AA1984/609 remain in the custody of Archives because of the special arrangements regarding access to them, as reflected in the correspondence summarised above. (Para. 129).

For these reasons, the second question, insofar as it relates to whether any of the records constituting AA1984/609 are the property of the Commonwealth, should be answered “no”. (Para. 130).

As mentioned above, the resolution of the second question assists with resolving the first question, to which I now return. (Para. 131).

As is evident from the analysis of the second question, historically and conventionally, a distinction has been drawn between correspondence between a Governor-General and The Queen arising from the performance of the duties and functions of the office of Governor-General and correspondence between the Governor-General and other persons arising from the performance of those duties and functions. The distinction is clearly drawn in Mr Smith’s letter dated 20 May 1980 to Sir John (see Para. 20). The sui generis nature of correspondence between The Queen and a Vice-Regal representative is not, however, confined to Sir John himself. It is reflected in the evidence summarised above relating to the arrangements made by other Governors-General in relation such correspondence, including Lord Casey, Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen. (Para. 132).

In my respectful view, it is both unwise and unnecessary to seek in these proceedings to exhaustively define what papers or records of a Governor-General are “Commonwealth records” on the basis that they are Commonwealth property. In light of the assumption that all the records in AA1984/609 comprise correspondence between Sir John Kerr acting in his capacity as Governor-General and The Queen (and/or Her Majesty’s Private Secretary), and it is those records alone which are the subject of the applicant’s relevant request for access under the Act, it is sufficient to determine that, for the reasons given above, those records are not “Commonwealth records”, as found by Archives. (Para. 133).

As noted above, the alternative way in which the applicant contends that the documents comprising AA1984/609 are “Commonwealth records” is because they are the property of a Commonwealth institution, being the official establishment of the Governor-General. I will now address that alternative case, which also overlaps to an extent with the terms of the second question.

(c) In the alternative to question (b), did Archives exceed its jurisdiction by reason that AA1984/609 did not contain “Commonwealth records” because it was not the property of the official establishment of the Governor-General? (Para. 134).

In substance, the alternative issue raised by the applicant is whether the records comprising AA1984/609 are Commonwealth records because they are the property of a Commonwealth institution, namely the official establishment of the Governor-General. For the following reasons, I consider that this issue should also be answered in the negative, for the purposes of both this question and the second question. (Para. 135).

First, the word “property” should be given the same meaning when juxtaposed with the concept of “the official establishment of the Governor-General” as it has when juxtaposed with the concept of “the Commonwealth”. Accordingly, for the reasons given at [102] to [106] above, the reference to “property of” picks up the concept of ownership as ordinarily understood under the general law. Secondly, it is notable that the definition of “Commonwealth institution” in s 3(1) of the Act refers to the concept of “the official establishment of the Governor-General”, as opposed to the “Governor-General” or even “the office of the Governor-General”. As noted above, the phrase “the official establishment of the Governor-General”, which is undefined, appears to be unique to this Act. (Para. 136)

The task is to construe those words. The relevant principles of statutory construction are conveniently reflected in the following passage from the recent judgement of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 (SZTAL) at [14] (footnotes omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Para. 137).

It is significant that, in contrast with all the other “Commonwealth institutions” specified in s 3(1), the only one which has a qualification to it is that relating to “the official establishment of the Governor-General”. All the rest refer to the particular institution as a whole and without qualification, e.g. “the Executive Council”, “the Senate” and “a Department”. This strongly suggests that the qualification is intended not to encompass the broader institution which is reflected in the concept of “the Governor-General”. (Para. 138).

Justice Griffiths accepted “Archives’ submission that the qualification “official establishment” refers to persons who assist and support the Governor-General’s performance of official duties, namely the Official Secretary and his or her staff. The history of the position of Official Secretary is outlined in [66] above, noting also that the non-statutory position of Official Secretary to the Governor-General existed for decades prior to the amendments passed in 1984 and 1999. The effect of s 6 of the Governor-General Act is to create the statutory office of Official Secretary to the Governor-General and s 6(2) provides that the Official Secretary, together with the staff employed under s 13 (who then become members of the Governor-General’s staff) constitute “the Office of Official Secretary to the Governor-General”. The function of that Office is “to assist the Governor-General” (s 6(3)). (Para. 139).

“The effect of this construction is that the Governor-General himself or herself is not relevantly a “Commonwealth institution” or “the Commonwealth” itself. In my view, this outcome is supported not only by the text of the Act, but also by contextual considerations. Those considerations include the legislative history to the Act, although some care needs to be taken in this regard because, as noted above, that legislative history may not reveal a consistent approach to the question of the extent to which archives legislation should apply to the Governor-General’s records. The first Bill, the Archives Bill 1977, proposed that a different approach be taken to the records of a Governor-General and his Office, and records of the executive government. This is reflected, for example, in Prime Minister Fraser’s letter dated 18 October 1977 (see Para. 14) and Senator Durack’s reference to special provision having been made for the records of, inter alia, the Governor-General (see [30] above). (Para. 140).

It appears that a different view was taken in the Archives Bill 1981. The opposition moved an amendment to subject all records of the Governor-General to the open access provisions, but this Bill was never passed (see Paras.33,34). (Para. 141).

Justice Griffiths did “not consider that it is appropriate to construe the Act as passed by reference to the then opposition’s proposed amendment to an earlier Archives Bill. The Act plainly draws a distinction between the records of the official establishment of the Governor-General and the Governor-General himself or herself. In my view, the intention was to have the provisions of the Act, dealing with such matters as the open access period, apply to records of the official establishment of the Governor-General, but to leave to any particular Governor-General the option of placing his or her private or personal records with Archives under arrangements pursuant to s 6(2). To the extent that any such records were also “Commonwealth records” as defined in s 3(1), s 6(3) was inserted to ensure that the provisions relating to “Commonwealth records” applied to such documents even though they happened to have been included in personal papers deposited with Archives under a s 6(2) arrangement. (Para. 142).

Justice Griffiths did “not accept the applicant’s submission that the Act should be construed by reference to what Senator Evans said in his Second Reading Speech, when he referred to the legislation not applying to the Governor-General’s “private or personal records” and that this is a very limited category of documents, such as Christmas and birthday cards, bank statements etc. That approach fails to take account of the fact that there has generally been an acute appreciation of the special character of correspondence between the Governor-General and The Queen, an appreciation which was undoubtedly heightened by the events leading up to the dismissal of Prime Minister Whitlam on 11 November 1975. That appreciation is reflected not only in Prime Minister Fraser’s letter dated 18 October 1977 (see Para. 14), but also in the Director-General’s letter dated 18 November 1977 (see Para. 15).” (Para. 143).

Finally, Justice Griffiths said, “in my view, Kline provides additional support for this construction. Of course, Kline did not raise the proper construction of the Act, but rather the proper construction of the companion Freedom of Information Act 1982 (Cth) (the FOI Act). Moreover, there are clear differences between the FOI Act and the Act when it comes to dealing with documents or records relating to the Governor-General. Most notably, the Governor-General is not a “prescribed authority” for the purposes of the FOI Act. Under s 6A of the FOI Act there is a right of access under the FOI Act to a document of the Official Secretary where “the document relates to matters of an administrative nature”. (Para. 144).

Without losing sight of those important textual differences between the FOI Act and the Act, it seems to me that some of the observations of the High Court plurality in Kline provide broad guidance in resolving of some of the matters in dispute between the parties concerning the Act and its application to certain records of the Governor-General. (Para. 145).

First, the plurality in Kline (French CJ, Crennan, Kiefel and Bell JJ) stated at [33] that a matter of “considerable contextual significance” in resolving the issues there concerning access under the FOI Act is the fact that the Governor-General is not subject to the operation of that legislation. This was because that office did not fall within the definition of an “agency” or “prescribed authority”. The High Court also drew attention to the fact that neither the Parliament nor Justices of the High Court were subject to that legislation. Their Honours observed at [33] that:

… certain individuals, including the Governor-General, who hold independent offices pursuant to the Australian Constitution or a federal enactment, requiring the impartial discharge of the powers and functions of such office, are not subject to the operation of the FOI Act.

Similarly, the Governor-General is not subject to the operation of Act, however, it does apply to the official establishment of the Governor-General (as to which see further below). (Para. 146).

Secondly, matters of “textual significance” which were emphasised by the plurality in Kline include the fact that certain provisions of the FOI Act (namely ss 6A(1), 5(1) and (6)) reveal “a plain intention to constrain the extent to which the FOI Act pursues its purposes and objects against persons (or entities) providing administrative support to individuals who hold independent offices and are not subject to the operation of the FOI Act” (at [36]). The same may be said in respect of the Act and the distinction which is drawn there between, for example, the office of Governor-General and the “official establishment of the Governor-General”. (Para. 147).

Thirdly, the plurality noted at [37] that the FOI Act did not pursue its objects at any cost, but rather, struck a balance between exposing some government processes and activities to increased public participation and scrutiny while exempting other government processes and activities in order to secure a competing or conflicting public interest in non-disclosure. Similar observations may be made in respect of the Act (Para. 148).

Fourthly, the plurality noted at [38] that the position of the Governor-General “calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council”. These observations are equally applicable here. (Para. 149).

Fifthly, at [39], the plurality described the Governor-General’s responsibility for the administration of the Order of Australia as “a sui generis role” which required “full and frank assistance to the Governor-General from the Council for the Order”. In turn, the Council required full and frank assistance from the Office of the Official Secretary to the Governor-General. The same may be said in respect of the unique role of the Governor-General in providing personal briefings to The Queen, which briefings are made by the Governor-General without reference to, or advice from, the government. (Para. 150).

Sixthly, consistently with the exclusion of the Governor-General from the operation of the FOI Act, the plurality concluded that the class of documents which are not “of an administrative nature” related to the discharge of the Governor-General’s “substantive powers and functions”, as opposed to “matters of an administrative nature”, which connoted documents which concern the management and administration of office resources (at [41]). Similar implications might be drawn from the fact that the Act focuses on the records of the “official establishment of the Governor-General” as opposed to the position of Governor-General itself. (Para. 151).

Seventhly, it is appropriate to say something briefly concerning the phrase “administrative records” in the context of records of the official establishment of the Governor-General. As noted above, this phrase is not used in the Act although a similar phrase appears in the FOI Act, as discussed in Kline. The phrase does appear, however, in a document titled “Access Examination Manual” which is published by Archives (November 2014) for the guidance of its staff in making access decisions under the Act. At page 149, under the heading “Personal and private correspondence between the Governor-General and the Palace”, the Manual states:

The Archives Act brings the records of the official establishment of the Governor-General under its coverage. Records of the official establishment are essentially the records of the Office of the Governor-General. These administrative records are treated in the same way as other Commonwealth records subject to the Archives Act.

Personal and private correspondence from the Governor-General to the Monarch is not covered by the Archives Act. (Para. 152)

It is significant that there is no reference in Archives’ letter dated 31 March 2016 (see Para. 7), in which brief reasons were given for the decision to refuse access, to the issue whether the documents constituting AA1984/609 are “administrative records”. (Para. 153)

The applicant submitted that it should be inferred from the reasons given by Archives for denying access to the documents constituting M4153 that Archives reasoned that the only records of the Governor-General that are brought under the Act are administrative records of the official establishment of the Governor-General. It was further contended that this same reasoning was employed in denying access to AA1984/609 because, in the letter dated 10 May 2016, it was stated that this bundle of documents was not a “Commonwealth record” and is not subject to the access provisions under the Act “for the same reasons as Record M4153”. (Para. 154).

In my respectful view, the applicant’s submissions on this matter are based on a false premise. There is nothing in either statement of reasons to suggest that Archives viewed the characterisation of records as being “administrative records of the official establishment of the Governor-General” as relevant to its decision on access. I do not accept the applicant’s submission that it should be inferred that Archives applied the wrong test in its reasons for refusing access to AA1984/609. (Para. 155).

For these reasons, Justice Griffiths did not “accept that Archives exceeded its jurisdiction in determining that the records constituting AA1984/609 are not the property of the official establishment of the Governor-General. The third question should be answered in the negative.” (Para. 156)

Finally, on 16 March 2018, Griffith J. concluded:

“For these reasons, the originating application filed on 20 October 2016 should be dismissed. The parties were agreed that, in these circumstances, there should be no order as to costs.” (Para. 157).

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 6)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 4)

By Dr George Venturini  

2. Medieval combat for ‘the Palace letters’

So, was Prince Charles just a visitor to Australia in November 2015?

Interpretations of the events of 11 November, forty years before the visit by Prince Charles and Camilla, Duchess of Cornwall, have been offered by many, including the present writer: ‘The Anglo-American ambush of the Whitlam Government, 11.11.1975’, The AIM Network, 8-11 November 2015. It is gratifying that much of what was written there is now confirmed by a distinguished Australian scholar, who has devoted years of research for a two-volume biography of Gough Whitlam and was privileged to come on information available only recently when it became possible to examine certain private papers of Sir John Kerr, the Governor General who led Whitlam into the trap of a coup conceived in secret and deceit.

Unfortunately, it is left to professional performers in that little provincial theatre which is the Australia Parliament to praise the Australian people as ‘intelligent, informed and caring about what is going on’ – or similar vote-catching, and totally insincere, expressions. Very few Australians in fact take pride in speaking of what educated persons would call ‘the res publica’, the common – in the sense of mutual – interest.

A care for the common good demands much more than Australia – still so far from being ready for either the stringencies of liberties or radical rebirth, with its vast, neuter-minded middle-class still cocooned in commercial consumerism – is prepared to offer.

In the Australian electorate at large there is, indeed, a constipated core of conservatism, a soft underbelly of complacency and a despairing sovereign indifference whereby it is easy ‘to believe’ that, since “the Crown is above politics” and the Queen is a benign, old-grand-ma, powerless figurehead, Governor-General Kerr must of course have dismissed Whitlam on his own initiative, without the Queen’s knowledge, and that he did so over the refusal of the Opposition to pass ‘Supply’ – the bills to fund the government. Ask the ordinary Jack or Jill out there, and if s/he knows anything and/or remembers what happened on 11 November, it would be ‘the fact’ that the Opposition of the day had for weeks blocked the passage of the Government’s Supply bills, and that, alone, had forced Kerr to act. If challenged with a contrary view, s/he would display, aggressively, a militant anti-intellectualism, motivated only by a desire not to be disturbed by ‘politics’ – and that is a very comprehensive word, indeed! If s/he is informed, and one step ahead of the ordinary person, s/he might go along with Kerr “Statement of Reasons” for the dismissal. Kerr wrote that “Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and indeed the duty under the Constitution to withdraw his Commission as Prime Minister.”

Nothing could be farther from the historical truth. And that was documented by Professor Hocking in her recent work: The dismissal dossier: Everything you were never meant to know about November 1975 (Melbourne 2015), released on 1 November.

There had already been some anticipation: on 26 October 2015 an article by Gabrielle Chan in The Guardian – the Australian edition was headed: ‘Prince Charles knew of idea to dismiss Whitlam before 1975 crisis’. The article referred to the yet un-published Hocking’s book.

The article disclosed how Governor-General Kerr “had regular contact with the palace in the lead-up to sacking”. Kerr had even gone to the extent of suggesting to Charles that he could have been a future governor-general – a subject which, in the clearly lese Westminster System remains within the prerogative of the prime minister, who chooses and nominates while the sovereign appoints.

Kerr, first canvassed the possibility with Prince Charles as early as August 1975 – two months before the constitutional crisis began.

Kerr – a terribly insecure sycophant of a man, plagued by fear for his past connections with Intelligence agencies, both within and outside Australia, and by his recurrent battle with alcohol which since his appointment in July 1974 had already necessitated at least two un-publicised recoveries into hospital for detoxification, who was rumoured to have ‘indifferent sexual tastes’ and to have consumed ‘young flesh contacts’ as recently as the Lawasia conference at Kuala Lumpur in 1968 – was going to enthrone Charles as Governor-General! The famous constitutionalist had forgotten that such an act would require Prime Minister Whitlam to advise the Queen.

When Kerr raised his plans with Prince Charles, the next in line to the throne confirmed his knowledge of Kerr’s plans to dismiss an elected Prime Minister.

One enters carefully into ‘the Royal world’ – made of smoke, mirrors, hints, protocols, and hypocrisy – in common parlance: cant. And superb practice of that cant is left to courtiers, fawners, lackeys, sycophants and servile self-seeking flatterers.

But Hocking had already provided compelling evidence for ‘a decision of the highest order’. Hocking biography showed, from Kerr’s personal notes, that the Queen herself had been giving him the confidence to dismiss Whitlam (Jenny Hocking, Gough Whitlam: his time, Melbourne 2012).

The evidence was until recently circumstantial, but involves ‘Royals’, and it was used cautiously.

In mid-September 1975, two months before the dismissal, Kerr was in Papua New Guinea attending that country’s independence ceremonies. There he spoke with Prince Charles. They had a personal connection, according to a biography of Charles, because – as already said – the previous year Kerr had raised with the heir to the throne the possibility that he might have a term as Governor-General himself. With that established connection, Hocking wrote that Kerr was confident enough to raise with Charles the possible dismissal of the Whitlam Government and his concerns that he could be dismissed had the Prime Minister got to ‘The Palace’ first.

According to Kerr’s notes – as examined by Hocking – Charles replied: “But surely, Sir John, the Queen should not have to accept advice that you should be recalled at the very time, should this happen, when you were considering having to dismiss the government.”

Hocking writes that when Charles returned from Papua New Guinea he took up Kerr’s concerns with the Queen’s Private Secretary, Sir Martin Charteris. Sir Martin then wrote to Kerr, just a week before the ‘Supply’ crisis leading to the dismissal began – says Hocking with what she calls “remarkable advice”.

The Queen’s private secretary told Kerr – and this again is according to Kerr’s personal notes quoted by Hocking – that should “the contingency to which you refer” arise the Queen would “try to delay things”, although, Sir Martin said, in the end she would have to take the advice of her Prime Minister.

That seems a rather circuitous way of saying everything, but committing to nothing in the mannered “Chinese-esque” language of courtesans.

And there is no doubt that the clearly implied support of the Monarch would have been an immense comfort to the Governor-General, who feared he might be out of commission if he tried to dismiss Whitlam, as Marius Benson speculated in ‘Whitlam dismissal a decision of the highest order’, abc.net.au, 3 September 2012).

Benson turned out to be correct.

Hocking amplified her account and confirmed Benson’s supposition in the updated edition of her book: The dismissal dossier, published on 18 October 2017.

In fact, Kerr wrote “regular and extended” letters to the Queen and her private secretary Sir Martin Charteris during the period leading up to the dismissal; Kerr was assured that every one of his letters was read by Charteris and the Queen. As Kerr noted, “and she herself told me that if I found the need to write to her direct to feel entirely at liberty to do so.” The style and the substance of that sentence give an abundant measure of the servility of the man-Kerr!  One week before the dismissal Charteris informed the Governor-General of the Queen’s intentions if Whitlam moved against Kerr: “Charteris told him that should this ‘contingency’ occur, the Queen would ‘try to delay things’ for as long as possible …”, so that Kerr could sack Whitlam. [Emphasis added]

Interestingly, on 12 November 1975, Gordon Scholes, still Speaker of the House of Representatives, would write to the Queen, asking her to restore Whitlam as Prime Minister. The reply from Sir Martin, dated 17 November 1975, reads: “As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.”

Everything is possible to foreign, distant, un-accountable monarchs: “try to delay things” or do nothing – whatever.

It is quite credible that Kerr was contemplating dismissing Whitlam two months before he so acted. But Kerr ignored Whitlam’s instruction, deceived him, and went on to Barwick, a sworn political and personal enemy to Whitlam.

Seeking confirmation of his already-arrived-at decision, Kerr met with Barwick and asked for his views of a dismissal of Whitlam. Barwick furnished him with written advice containing his view that a Governor-General could and should dismiss a Prime Minister who was unable to obtain ‘Supply’. Barwick specified that the Prime Minister should also not have refused either to resign or to advise a general election – a suggestion with which Kerr agreed.

Barwick gave Kerr the support he needed.

Kerr felt encouraged. And never mind that in giving his opinion Barwick was breaching the highly esteemed ‘doctrine of the separation of powers’. Barwick could have written pages and pages on it without believing a word of it!

Whitlam had the highest respect for ‘the doctrine’ and firmly believed that the Queen’s representative must rely on the advice of his ministers – the essence of the Westminster ‘tradition of constitutional rule’. This immediately opened another door for Kerr: he could have summoned Fraser and told him that he was bound by Whitlam’s advice, so the only solution was for Fraser to retreat.

As it turned out some thirty-seven years after, there appeared another member of the High Court and a friend of Kerr involved in the ambush. It was Sir Anthony Mason. Mason had a reputation for impartiality. He was – as the myth-making language goes -‘apolitical’.

In the end, Mason also breached convention by offering Kerr advice and even preparing a document of dismissal, that Kerr ended up not using. Mason was satisfied by taking an apparently more neutral stance and telling Kerr that he should at least warn Whitlam of his thinking and give him the advantageous chance to call an election himself – as Prime Minister. Sir Anthony gave Kerr similar advice to that of Sir Garfield, privately, on 9 November. But Mason added that the Governor-General needed to notify the Prime Minister of his intention to proceed to dismissal.

Kerr identified the person who would become Chief Justice as the “’third man”, who secretly advised and “fortified” him in his decision to dismiss the Whitlam Government.

Kerr’s private records insist that Sir Anthony “played the most significant part in my thinking” and even reassured him that he had made the right call two days before he dismissed the government. They also assert that Sir Anthony, at the time a High Court judge, was the author of a statement that Kerr “incorporated in my public statement” justifying his actions.

The records were uncovered by Professor Jenny Hocking. Hocking says that Kerr’s records suggest that “Mason was not merely the third man: he was, in many ways, the man.”

Kerr’s records make it clear that he wanted the extent of Sir Anthony’s role to surface not after his own death but while Sir Anthony was still alive, with the aim of deflecting his responsibility for the deception and dismissal of Whitlam.

“In the light of the enormous and vicious criticism of myself, I should have dearly liked to have had the public evidence during my lifetime of what Mason had said and done during October-November 1975 … [but] he would be happier … if history never came to know of his role,” Kerr wrote.

And further: “I shall keep the whole matter alive in my mind till the end, and if this document is found among my archives, it will mean that my final decision is that truth must prevail, and, as he played a most significant part in my thinking at that critical time, and as he will be in the shades of history when this is read, his role should be known.”

The account adds weight to the perception of Kerr as a weak man who wanted and needed to feel his actions had the approval of others. Aside from being portrayed as a constant confidant, the records depict Sir Anthony “as providing a necessary bridge between Kerr and chief justice Sir Garfield Barwick” writes Hocking.

Sir Anthony’s role in the dismissal has been the subject of speculation for decades, after Kerr noted in his memoir that one person other than Barwick, “sustained me in my own thinking as to the imperative within which I had to act.”

The detail laid out in Kerr’s private papers on their “running conversation” staggered Hocking. “I was just astonished by what I read.”

Sir Anthony had consistently refused to be drawn on his role. But he offered his own detailed account of what took place and agreed to render it public. (Sir Anthony Mason, ‘It was unfolding like a Greek tragedy’, The Sydney Morning Herald, 27 August 2012).

In conclusion: here was a ‘third’ man; but there was also a First Woman.

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 2)

Previous instalment – Charles lll

Mostly Unpublished Letters ; May to August 2019 – PLS Have a Read and Discuss

This is a kind of tragic-comic opera – an opera buffa, in many acts and parts, observed by a traveller to Australia who is likely to spend the rest of his life surrounded by an indifferent populace. It is a ‘mob’ – unconcerned about the original and continuing wrong of 1788 and lacking in development because conditioned by, and resigned to, a backward-looking view of life. That view suffers from the subjection to, and dependence on, a foreign authority undesirable for any imaginable reason. It was called ‘The Monarchy’ in a recent medieval pronouncement, written to deny access to some bits of the place’s history: the so-called ‘Palace letters’ (Hocking v. Director-General of the National Archives of Australia [2019] Federal Court of Australia, Full Court 12, 8 February 2019). Not that it matters much to the plebs; for them history pertains to the national religion: sport – from football to just about any physical activity, and even the passive observation thereof – so long as the brain in not engaged. A sense of safety comes from the ‘ruler at home’. But ‘The Monarchy’ is sectarian, parasitic by definition, steeped in privilege, inclined to prejudice, obscenely wealthy, and more than acceptably unhinged. And these are ‘qualities’ to which – except for money – even the furiously moronic machos claim to appear opposed and with which, anyway, they do not like to paint themselves.

Against the receding backdrop of the Royal Ambush of 1975, the opera is filled with criminal banksters, dilettante ‘statesmen’ – though there are some women on the stage, self-proclaimed ‘public women and men’ who perform in pirouettes in clumsy imitation of a foreign custom called ‘parliamentary democracy’, ostensibly as loyal subjects but often in pectore perjurers, while in substance the un-elected, not-responsible  moneybags play the part of substitutes for the lords – as ‘at home’.

It is a bilge of imitation of outdated, decrepit institutions of public life, strongly relying on the passive acceptance of lies, in peace – as well as in war, and a proclivity to commit to war ‘on call’ and frequently. It is an attitude continued with the parroting callisthenics of and in parliament, with the prescribed steps of a baroque and  privileged remoteness of an archaic system of justice, with a decaying public administration, comforted by brain-sucking and sometime criminal-religious organisations, an un-delivering system of education, a pretend-classless society,  and a delinquent system of social assistance which fatally accepts permanent un-employment, badly hidden under-employment, homelessness and generally lack of care from the cradle to the grave – just like ‘at home’.

The main actors are the Philistines who command the submission – they do not worry about respect – of the occasional out-of-tune choir which sings that the hoi polloi are ‘young and free’ in a home ‘girt by sea’.

The opera’s performances evoke the crimes reduced to almost passable and always indifferent words, easily forgotten by the passing of time so that previous mistakes may turn out to be new to new no-nothing generations. Some of the topics dealt with are: a pervasive malpractice, an unctuous attitude to power at the apex of which is ‘The Monarchy’, a tolerance of continuing corporate crimes, a habit (here called cultcher) of vassalage, adventures involving encounters with spying on neighbours, dancing with Saddam, or familiar paso doble steps such as AWB, Iraq, police’s crimes, banksters’ crimes, clergy’s crimes, and so on, down to the recent Invictus Games sponsored by arms manufacturers totally un-caring but for their profits.

The present libretto covers events from at least the beginning of ATM (the Abbott-Turnbull-Morrison trio) in early 2013 to the Royal Commission on banksters in 2019.

An indifferent populace has been led for the past six years through three-words banal and demonstrably empty hooplas by slogans such as “climate change = crap”; “jobs and growth”; and – recently – “fair dinkum power”. The latest – one most ardently hopes the last – is the intellectual measure of a cheap marketeer who sees himself as a leader, when he is, in fact, an inferior combination of Arthur Miller’s ‘Willy’ Loman and Sinclair Lewis’ Elmer Gantry.

The ‘Palace Letters’

The misadventures of a banana monarchy and the tragic Opera Buffa of an indifferent Australian populace.

By Dr George Venturini

Prologue

An intending traveller to Australia in the early nineteen-sixties, before departing from Singapore, would have found, in the best provided bookshop-with-bric-à-brac, a little book by the attractive title: The lucky country. It remains the fame-giving work of Donald Horne, a caring Australian essayist and public intellectual.

The traveller would be surprised by observations such as these: “…while ordinary Australians have many fine and some quite exceptional characteristics, the present elites in Australia are mostly second-rate. Many of the nation’s affairs are conducted by racketeers of the mediocre who have risen to authority in a non-competitive community where they are protected in their adaptations of other people’s ideas. … Much energy is wasted in pretending to be stupid. To appear ordinary, just like everybody else, is sometimes a necessary condition for success in Australia. … In this atmosphere cleverness and talent can become devious … What often perishes altogether – in the bureaucracy of business or of government or in the universities and in such intellectual communities as exist – are originality, insight and sensitivity, the creative sources of human activity. In an imitative country no one has to be creative, the creative person is likely to be confronted with distrust – not perhaps in science or the arts, but almost everywhere else. It is as if the masters of Australia have inherited a civilization whose rules they do not understand. … The potential for change within the ordinary people of Australia is great; it is their misfortune that their affairs are controlled by second-rate men who cannot understand the practicality of change, who are, in other words, ‘conformist’.” (D. Horne, The lucky country, Penguin, Australia, 1964 at 39,40,41).

With the title immediately misunderstood, but gladly received in the common parlance, The lucky country was declared dead twelve years after. (D. Horne, Death of the lucky country, Penguin, Australia, 1976).

Horne’s criticism came after a constitutional crisis of revolutionary proportion, which was accompanied by increasing economic difficulties and inflation. And inflation – according to Horne – “demanded explanation. World inflation is not only an economic crisis. It is a cultural crisis and in such a crisis there can be a return to the consolation of old faiths. A large part of Australians’ values are measured in money. Describe our economic life and you describe a large part of our culture.” Id., at 62-63. [Emphasis added]

How could such pessimistic view be justified?

* * * * *

Well, Australians had not seen a Labor government since Curtin-Chifley government. That government had led the country through the years of the second world war, when Australians had been called to defend their country against the threat of a Japanese invasion. It would become the only occasion, one in sixteen, when Australians had not served as White Gurkhas of ‘Great and Powerful Friends’. In 1949 the federal government had returned the Liberal-Country Party; it would last with Robert Gordon Menzies until 1966 and give him, who had sold ‘pig-iron’ to the Japanese rising Empire in 1938 and for that earned the moniker, the opportunity to lie in 1965 to the Australian Parliament and people  over a telegram from the Saigon military junta of Nguyễn Cao Kỳ and Nguyễn Văn Thiệu. Their call for intervention was never found.

In between, Menzies found several occasions in the nineteen-thirties to exalt the Nazi dictatorship, and of hallucinating in the presence of Queen Elizabeth by declaiming during her visit to Parliament House in 1963 that “I did but see her passing by and yet I love her till I die.” followed by the customary, servile applause.

What Menzies did not say is that he was using lines 3 and 4 of the first stanza of Thomas Ford (1580-1648), a fairly obscure, forgotten English poet and lutenist of the seventeenth century.

There is another side of Menzies, less poetic. “There is a good deal of real spiritual quality”, Menzies declared on his return from Germany in 1938, “in the willingness of young Germans to devote themselves to the service and well-being of the state” (S. Macintyre, The succeeding age 1901-1942, Oxford University Press 1986, at 183). And in April 1941, as he was returning from London, leaving behind the fractured dream of replacing Churchill, he lamented that he had a “sick feeling of repugnance and apprehension“ which grew on him as he was nearing Australia and whereby he was wishing  that he could “creep in quietly into the bosom of the family and rest there.” (Menzies Diary, 23 May 1941, quoted in D. Day, Menzies and Churchill at war – A controversial new account of the 1941 struggle for power, Angus & Roberson Publishers, North Ryde, N.S.W.,1986, at 153).

Despite such unambiguous appeals to patriotism, Menzies was giving the Australians of the time what they most still crave: a sense of ‘respectability’ as defined by the conservative parties of the money bags and agrarian socialists and linked to ‘white’ Anglo-Saxon Protestant values. The modern Liberal-National combination still claims a monopoly on ‘loyalty’ – once to Britain and since the nineteen-forties to the United States. For three quarters of the life of Australia the Liberals have tried and mostly succeeded in establishing a monopoly on political ‘legitimacy’. And that has made of the Labor Party some kind of raggedy mob of dilettanti, often to be branded as a troop of clowns who have come to town to make a great noise but would not be tolerate for long. For good measure anyway, the game had been rigged in favour of the ‘divine rulers’. Labor had won an outright majority of votes in the 1954 elections, and a majority of the preferred votes in the 1961 and 1969 elections – but was still unable to obtain a majority of the House of Representatives, where a government – traditionally – is been formed.

Menzies was succeeded by Harold Holt (1966–1967), who during his visit to the United States in June 1966, in a speech at the White House,  departed from the prepared text and enthusiastically declared that Australia would be “all the way with LBJ” in the Vietnam war – sharing in the spreading of some 80 million litres of Agent Orange, a gene damaging chemical defoliant; John McEwen (1967-1968), briefly and un-memorably; John Gorton (198-1971), who in March 1969, toasting President Richard Nixon at the White House, reaffirmed that “… we will go Waltzing Matilda with you.” – for the same criminal function; and, finally, William McMahon (1971-1972), a rudderless joke.

In 1972 there was a surprise. Its name was Edward Gough Whitlam.

Born in Kew, Melbourne, hence from a ‘respectable’ side of the tracks, he was the son of a  federal public servant who would later serve as Commonwealth Crown Solicitor – a man deeply involved in  human rights issues who would exert a powerful influence on his son. Gough was fortunate enough to meet a glorious woman in Margaret, the daughter of Wilfred Robert ‘Bill’ Dovey, a New South Wales Supreme Court judge. That, too, added to ‘respectability’.

Elected to the federal Parliament in 1952 for the Labor Party, Whitlam became deputy leader in 1960 and leader in 1967. The conservatives had been served notice. Here was a man of unquestionable ‘provenance’, with a great education, a powerful erudition, supported by an extraordinary memory for the most minute details, equipped with a ferocious intellect and a tongue to go with it. In and out of Parliament he stood his ground without fear and occasionally without the customary hypocritical forms which characterises the boring etiquette of the Westminster System. It is a system so phoney that it had to steal a word from the French language to define its manners.

So Whitlam thought nothing of calling William Meskill (Bill) Bourke – an informer on the Labor Party of which he was a member and later a collaborator with the party’s enemies at the time of the split in 1955 – “this grizzling Quisling”, of calling Garfield Barwick – who would, while High Court Chief Justice, play a role in Whitlam’s downfall – a “bumptious bastard”, and stating that William Charles ‘Bill’ Wentworth, M.P. exhibited a “hereditary streak of insanity”. After referring to Sir William ‘Billy’ McMahon, the future prime minister he would defeat in 1972, as a “quean”, he was called to apologise. He did so. In time he would quickly find words for his nemesis and the usurper of his prime ministership: he would famously call the beneficiary of the Royal Ambush “Kerr’s cur” and the supporting Garfield a “truculent runt”.

Once in government, in mid-1974 Whitlam had had to face what historian Russel Ward branded as follows: “So in April 1974 Her Majesty’s loyal opposition behaved more like a gang of fascist thugs than responsible politicians in a democratic country.” They forced Whitlam to seek a double dissolution eighteen months before an election should have been necessary (R. Ward’s Concise history of Australia, University of Queensland Press, Brisbane 1992 at 322).

Between 1967 and 1972 Whitlam had conceived, set out and refined the Programme he would submit to the “men and women of Australia” at Blacktown, N.S.W. on 13 November 1972.

The Whitlam Programme contained three broad directives:

• to promote equality;
• to involve the people of Australia in the decision-making processes of their land; and
• to liberate the talents and uplift the horizons of the Australian people.

In government Whitlam articulated those objectives, establishing priorities:

• to end conscription,
• to bring the boys back from the criminal adventure which was Vietnam,
• to reopen diplomatic ties with China,
• to recognise the independence of Papua New Guinea,
• to establish the Law Reform Commission,
• to abolish appeals to the Privy Council,
• to establish the Legal Aid Office,
• to establish the Trade Practices Commission,
• to establish a single Department of Defence,
• to establish Medibank,
• to begin the work for the recognition of Indigenous land rights,
• to set up Telecom and Australia Post from the Postmaster-General Department,
• to begin to work towards equal pay for women,
• to abolish tertiary education fees,
• to raise the age pension to 25 per cent of average male weekly earnings,
• to introduce no-fault divorce,
• to see enacted a series of laws outlawing racial and sexual discrimination,
• to extend maternity leave and benefits to single mothers,
• to prepare the construction of the National Gallery of Australia,
• to establish the National Parks and Wildlife Service,
• to set up the National Film and Television School,
• to establish the Order of Australia to replace the British Honours system, and
• to change the national anthem to ‘Advance Australia fair’.

If nothing else, the Whitlam government went into power with a sense of agenda and spent its short terms in office obsessed, perhaps fatally, by its execution. All told, the two-phase governments lasted between December 1972 and November 1975: 35 months and two elections.

Maybe Whitlam had offered too much, and asked too much.

Most Australians – those ‘who matter’ anyway – like the kind of English, passionless muddling through which is available in grand loads ‘at Home’. Muddling through comes as way of life, a cult almost and its religious solemnity is celebrated by looking from below at a grandiosely dysfunctional, decaying, parasitic, over-dated ‘Family’, with its be-medaled males and ‘forever youthful’ women, standing above, from the Palace balcony, for the populace to admire it.

It does not matter that Australians like to make joke of some, perhaps many, members of ‘The Family’ – better: ‘The Firm’.

Muddling through suits Australians, because in the royal world of smoke, mirrors, hints and protocols there is room for authorised doubt. It helps equivocation, non-commitment. Deception? That too.

Whitlam would have, through education free for all, pulled back the curtain on Australian corroded and corrosive political system, which has been rendered inchoate – bland public performances by ‘battery-farm’ politicians alternating with vicious television ads – after the interminable years of cynical massage by consultants and pollsters. This is anyway the story through ‘the tube’, which arrived about sixty years ago, in Menzian time.

There is hardly any difference nowadays between a commercial and a ‘political’ advertisement. And how blah it has all become!

It is the ‘politics’ as expressed and practiced at the pub, or in the living rooms, and not exclusively by white men with a limited education and a will determined not to be disturbed by curiosity. But television – particularly private television – does not hold the truth. Television is most of the time an amusement park, a bad assortment of a circus, a carnival, a travelling troupe of acrobats and story-tellers, singers and dancers, jugglers, side-show freaks, lion-tamers and football players.

That ‘third parent’ – if a child were to be so lucky to have the other two together – is in the boredom-killing business. It is rarely the source of truth, and even more infrequently of education.

Two generations, at least, of such ‘non-participants to public life’ – as it suits the two-party-Westminster-like system – have mistaken illusion for reality. Because of that the viewers of such incantation do whatever ‘the tube’ tells them, think like ‘the tube’, rear their children like ‘the tube’, dress like ‘the tube’, eat like ‘the tube’. In that ultimate theatre a mindless populace has found its ultimate charlatans.

These plastic men – and some women, too – these ‘managers’ work for the corporate society into which they have turned Australia, a section of the ‘western’ corporate world in a corporate universe. This world quite simply is a vast cosmology of small corporations orbiting around larger corporations – mostly foreign, mostly dependent on the banks – which in turn revolve around giant corporations. Yet, this is not the real world. It is the ‘world’ of the post-Whitlam ‘restoration’, largely with the values of ‘the market’.

In the fierce arena of ‘politics’ as ‘played’ today if ‘the tube’ hints or says that one has received, or is about to receive a fantastic sum of money, or is corrupt, or if the-one-proprietor-media say so, that is enough not to question and to give the vote to ‘the other party’. And the ‘Westminster System’ is based on two parties – no more, no room for shades, doubt, honest compromise or third solution to a problem.

Such backward, feudal and deleterious over-simplification, more often than not, committed to a short-bite sound, without room for discussion, produces the murmurs which cost the future to Cairns and Connor, portrayed the Whitlam Government as a band of amateurs, who could not be trusted to replace the ‘tried experts’.

That the experts turned out to be a prime minister and his foreign minister enabling the crooks of the Australian Wheat Board Ltd., and all of them operating against United Nations declared sanctions, is mentioned only in passing – if at all.

Memories are very short, and selectively so. And so the helots – who in ancient Sparta were a class of serfs neither a slave nor free citizens – draw the despairing conclusion that ‘they – meaning ‘the politicians’ – are all the same’. But in this miasmatic presentation the Liberals are still ‘more respectable’. The question remains: ‘respectable’ by whom, where, why and how? The monarchy needs such morons; it thrives on them.

One is back to the master-servant relationship which seems to pervade the Australian society.

Whitlam might have been persuaded to blast through the ideological sclerosis of the two parties ‘system’, to make room for voices different from the original inhabitants, the old and the ‘new Australians’ – that mysterious mélange of different people referred to en masse as multicultural, who should be welcome – and not ostracised, not exposed to historical nativist, anti-refugee xenophobia by a mass of imitative, sub-tropical Englanders.

If given the chance, Whitlam would have transformed a soi-disant Judeo-Christian-dominated ‘traditionally British’ place into a real nation, a gloriously vibrating – by ‘British’ standards, for sure – mongrel polyglot society, open to new ideas, friendly to its neighbours after so many years of discrimination, mistrust and aggression.

Reduced to its absurd minimalism, today the television bites favour ‘three-word programmes’.

The resurgent mantra of the ‘born-to-rule’ in time would become a little bit longer: “freedom, the individual and the market”, but settled down to a more memorable “Jobs & Growth”.

On Whitlam’s death a state memorial service was held on 5 November 2014 in the Sydney Town Hall. Thousands of common people were outside, the faithful ones, those who would not forget the three highly charged 35 months and their aftermath.

The Hall was full, with many good people, a strong contingent of Indigenous and Torres Strait Islander People, the usual attendees, several former prime ministers all of modest stature, and amongst them an omni-present un-indicted war-criminal. And then there were the usual celebrities and several ‘whited sepulchres’.

Noel Pearson, the Indigenous lawyer, academic, land rights activist and founder of the Cape York Institute for Policy and Leadership delivered what he called a fitting tribute to ‘an old man’.

He was the most lyrical, assertive, sublime of the celebrants.

Pearson, most warmly, forcefully, movingly remembered Whitlam for his burning conviction to break down class and race barriers:

“We salute this old man for his great love and dedication to his country and to the Australian people. When he breathed, he truly was Australia’s greatest white elder and friend without peer of the original Australians.

Of course recalling the Whitlam government’s legacy has been for the past [then] 39 years since the dismissal, a fraught and partisan business. Assessments of those three highly charged years and their aftermath, divide between the nostalgia and fierce pride of the faithful, and the equally vociferous opinion that the Whitlam years represented the nadir of national government in Australia.

Let me venture a perspective.

The Whitlam government is the textbook case of reform trumping management.

 In less than three years an astonishing reform agenda leapt off the policy platform and into legislation and the machinery and programs of government. The country would change forever. The modern, cosmopolitan Australia finally emerged like a technicolour butterfly from its long-dormant chrysalis.

Thirty-eight years later we are like John Cleese, Eric Idle and Michael Palin’s Jewish insurgents ranting against the despotic rule of Rome, defiantly demanding ‘and what did the Romans ever do for us anyway?’

Apart from Medibank?

and the Trade Practices Act 1974?

cutting tariff protections?

and no-fault divorce and the Family Law Act 1975?

the Australia Council?

the Federal Court?

the Order of Australia?

federal legal aid?

the Racial Discrimination Act 1975?

needs-based schools funding?

the recognition of China?

the Law Reform Commission?

the abolition of conscription?

student financial assistance?

FM radio and the Heritage Commission?

non-discriminatory immigration rules?

community health clinics?

Aboriginal land rights?

paid maternity leave for public servants?

lowering the minimum voting age to 18 years?

fair electoral boundaries and Senate representation for the Territories?

Apart from all of this, what did this Roman ever do for us?

And the prime minister with that classical Roman mien, one who would have been as naturally garbed in a toga as a safari suit, stands imperiously with twinkling eyes and that slight self-mocking smile playing around his mouth – in turn infuriating his enemies and delighting his followers.

There is no need for nostalgia and yearning for what might have been. The achievements of this old man are present in the institutions we today take for granted, and played no small part in the progress of modern Australia.”

Jenny Hocking (image from batemansbaypost.com.au)

What happened towards the end of those 35 months of the Whitlam governments is exceptionally well covered in a book by a distinguished historian, Professor emerita Jenny Hocking: The dismissal dossier – Everything you were never meant to know about November 1975 (Melbourne University Press, 2017). There is a perhaps more sanguine version of the events in The Anglo-American ambush of the Whitlam Government – 11.11.1975 (serialised from 8 November 2015 by The AIM Network).

And what happened on 11 November 1975? Put it simply, this: The Governor-General secretly decided to support the political plans of the Liberal-National Coalition – the backwoodsmen of yesteryear.

Against all honourable and contemporary practice he did not discuss that decision with Whitlam. Of course! The chief justice and a judge of the High Court supported the plan, albeit – at least from the latter – under some conditions, which were disregarded. The Governor-General then mounted a time-tabled operation, that one could better describe as a coup d’état. And that, too, is a foreign expression, because nothing like that ever happened in Sir John Falstaff’s beloved England! Really? Spies from Ukania are the world champs in false flags, lying and deception; they have been for centuries. And the Australian Falstaff had learned to be fairly good at it.

The Prime Minister – trusting in the given word, and only apparent honourable behaviour of a fat, vain, boastful, vulgar sensualist, debauchee often too well-imbibed, and cowardly knight, was left with a false sense of security.

Such deception was necessary to dismiss the prime minister and install in his place the leader of Her Majesty Opposition, and immediately dissolve parliament. Voila!

Maybe Whitlam had demanded too much of a recalcitrant, uneducated, indifferent populace. For months Her Majesty’s Opposition had charged the Whitlam government with ‘bad management’ of the economic crisis which had gripped the world and was known overseas as the ‘petrol crisis’ but in Australia as a consequence of ‘Whitlam socialism’. Of course, people of good faith knew that Whitlam was no socialist, perhaps not even a social-democrat – simply a decent man concerned with the amelioration of Australian society, for all and not for the few who controlled it. So the electorate was exposed to a long campaign of accusation of generic faults summed up in words ague but familiar: ‘international safaris’ against ‘the politicians’, ‘job for the boys’ – that is people connected with Labor, ‘dole bludgers’ as the ultimate humiliation of the unemployed et cetera. It was the familiar jargon of a subtropical transplant of a nation of shopkeepers, a limited language expressed in primitivistic abstractions: ‘initiative’, ‘independence, ‘thrift’. It was, as often in the past, ‘protection’ from ‘competition’ – both of them mis-understood, of course, ‘freedom of enterprise’ against ‘socialism’ – worst still ‘communism’, which was always not far away, coming down from Asia, as Menzies-the-Prophet had reassured. It was, in the end just as at the beginning of the Whitlam government a conflict between Labor incompetence and crookedness and a tried and successful Liberal management of a complex economy. And the remedy ? the triumph of ‘the private sector’, which of course was supported by newspaper proprietors and that camarilla of ‘bien-pensants’ who are the controllers of political-legal networks: most judges and barristers, the leaders of professional organisations such as doctors, and most top administrators, academics, ‘intelligence’ men, bank managers, and all those who would be ‘at home’ – and this time, here, in Australia – in anyone of the ‘establishment clubs’ which still pullulate the major cities, particularly Melbourne and Sydney. To all of such, natural leaders’ Labor in government, and heaven knows in power, was anathema. That it should be given a chance every once in a while, was a proof, but not a guarantee of ‘democracy’; but the licence should not last for long, because they, ‘the Liberals’ were the natural leaders of the country.

Continued Saturday – The restoration of malpractice (part 1)