The long-running ‘Palace letters’ case over the Queen’s secret correspondence regarding the 1975 dismissal of Prime Minister Gough Whitlam heads back to court on Wednesday 28 November, with an appeal hearing before the full bench of the Federal Court in Sydney.
The case against the National Archives of Australia began in 2016 when I initiated action in the Federal Court, seeking the release of letters between the Queen and the Governor-General, Sir John Kerr, relating to Kerr’s dismissal of the Whitlam government.
The ‘Palace letters’ are held in the National Archives in Canberra where they are maintained at our expense, and kept secret from us. The letters have been embargoed by the Queen, potentially indefinitely, on the grounds that they are ‘personal’ communications with the Governor-General. The legal case has centred on this vital description of the letters as ‘personal’. The consequence of this simple label ‘personal’ is no mere legal nicety; it locks these historic letters beyond the reach of the Archives Act, which relates only to Commonwealth records, and keeps them from the usual open access provisions under the 30 year rule, according to which they would now be open.
It is difficult to reconcile the label ‘personal’ for any letters between the Governor-General and the Queen, two positions at the apex of our system of Constitutional monarchy, let alone those written at a time of intense political upheaval and regarding the dismissal of a Prime Minister and his elected government. The label ‘personal’ for these formal written communications, which Kerr himself described as ‘despatches’, simply doesn’t pass the pub test. The legal issues on which the case turns are quite different, and in March 2018 Justice Griffiths ruled that the ‘Palace letters’ are ‘personal’, effectively continuing the Queen’s embargo of them. While Griffiths recognized the ‘clear public interest in the content of the records’, he also noted that ‘the legal issues … do not turn on whether there is a public interest in the records being published’.
The campaign to release the letters now continues with our appeal against this decision, to be led by Bret Walker SC with Tom Brennan, instructed by Corrs Chambers Westgarth, all working on a pro bono basis. As it stands, the Australian public are denied access to critical documents in our history at the behest of the Queen, with stark implications for our national independence and political autonomy. As the ALP federal member for Bruce, Julian Hill, argued: ‘the very notion of “personal” letters between the Monarch and the Governor-General offends all concepts of transparency and democracy’.
Kerr’s dismissal without warning of an elected government, which retained its clear parliamentary majority, is one of the most contentious episodes in our political history. Kerr’s appointment of Malcolm Fraser, the leader of the Liberal party which had lost the previous two elections, as Prime Minister only furthered this democratic depredation. Fraser then lost a motion of confidence in the House of Representatives by 10 votes on the afternoon of 11 November 1975, and that motion also called on the Governor-General to reinstate the Whitlam government. Kerr refused either to see the Speaker of the House or to acknowledge the motion of no confidence in Fraser, instead proroguing both houses of parliament with Fraser still as Prime Minister. This was Kerr’s ‘second dismissal’.
Central to the ‘dismissal narrative’ which quickly took shape was the view that the Governor-General acted alone, that he had no prior contact with Fraser or with the Queen, that this was a solo vice-regal act. We now know that this carefully constructed ‘dismissal narrative’ masked the Governor-General’s collusion with members of the High Court and with the Leader of the Opposition, and his acknowledged deception of the Prime Minister, Gough Whitlam, regarding Whitlam’s decision to call the half-Senate election.
A series of dramatic revelations, many of them from Kerr’s papers, has transformed that early history irrevocably. The critical revelation was the role of the former High Court justice, Sir Anthony Mason, as Kerr’s secret confidante and guide over several months, whose role included drafting for Kerr a letter dismissing Gough Whitlam. This process of historical correction through revelation continues today, driving our efforts to release the ‘Palace letters’ in order to establish just what the Queen, Prince Charles and the Palace knew of Kerr’s planning and intentions in dismissing the Whitlam government.
As might be expected, the case has generated great interest in Buckingham Palace. The Queen’s private secretary has been in contact with Government House throughout proceedings and has even made public some of these ‘personal’ letters – somewhat perversely in order to support the Archives’ case that the Palace letters should not be released. Those letters, part of the ‘Palace letters’ to which I was denied access, were then released and adduced into evidence.
The ‘Palace letters’ case has also raised fundamental and at times troubling questions about the role of the National Archives in preserving our historical records and ensuring public access to them. I have detailed elsewhere my grave concerns at revelations during the case that a duplicate set of the Palace letters to which I had also requested access in 2011, should already have been open for public access since 2008. Instead, Archives had informed me that these copies of the Palace letters were ‘completely closed’ and embargoed by the Queen in precisely the same way as the original ‘Palace letters’. This was not correct. It was revealed during proceedings that in fact these copies of the ‘Palace letters’ should have been released to me in 2011 when I first requested them. Once this startling information had been revealed, the copies of the ‘Palace letters’ should then have been immediately released to me. However, unknown to me or the legal team, new terms of access for these duplicate letters were hastily arranged with the National Archives and signed just three weeks later, firmly closing them to us.
In many respects the Archives increasingly appears as gate-keeper to our national historical records rather than a protector and facilitator of public access to them. It was recently revealed through parliamentary questioning that the National Archives has spent close to one million dollars in recent years fighting requests for public access to its records. Approximately half of this was spent fighting the ‘Palace letters’ case which seeks to give all Australians access to the Queen’s correspondence with the Governor-General.
Despite these difficulties our legal team remains optimistic that the ‘Palace letters’ will be recognized as Commonwealth records and released – by a decision of an Australian court and not the Queen. These letters are a critical part of the history of the dismissal of the Whitlam government which all Australians have a right to know. It is utterly inappropriate for any independent nation that such historical documents can remain secret from us at the behest of the Queen. This week’s appeal will take us one step further in our efforts to release the Palace letters, so that the full story of the dismissal might finally be known.
Jenny Hocking is emeritus professor at Monash University, Distinguished Whitlam Fellow at the Whitlam Institute at Western Sydney University and award-winning biographer of Gough Whitlam. Her latest book is The Dismissal Dossier: Everything You Were Never Meant to Know about November 1975 – The Palace Connection.