Pearls and Irritations

On Friday the federal court handed down its judgment in my action against the National Archives of Australia seeking the release of the “palace letters” between the Queen and the governor general, Sir John Kerr, regarding the Whitlam dismissal. In a stark decision, Justice John Griffiths held that these historically significant letters, written at a time that he recognised as “one of the most controversial and tumultuous events in the modern history of the nation”, should remain secret. Although Griffiths noted the “clear public interest in the content of the records”, he found that “the legal issues … do not turn on whether there is a public interest in the records being published”.

The court ruled that the palace letters are “personal” and not Commonwealth records and do not come under the Archives Act, which would have required their release after 30 years. Instead, they are to remain closed until at least 2027, with their release even after that date subject to the approval of both the governor general’s official secretary and the Queen’s private secretary. This means that the Queen’s embargo over their release will continue, potentially indefinitely.

From a purely common-sense perspective, it is difficult to reconcile the court’s view of the palace letters as “personal” and not Commonwealth records with its description of them as addressing “topics relating to the official duties and responsibilities of the governor general”, as “periodic briefings to the Queen”, and as “reports to the Queen”. The court pointed to the long-standing practice in the United Kingdom that such correspondence is considered “personal”, and that they are “housed in the Royal Archives and access to them is governed by specific agreements”, confirming that the imperial presumption of royal privilege and secrecy still exists in Australia despite our position as an apparently independent constitutional monarchy. Rule Britannia.

I took this case in an effort to secure public access to the palace letters because of their undoubted significance to our history, and also to ensure that access to them would be determined by an Australian court according to Australian law and not as a quasi-colonial gift of access by the Queen. A federal court action was the only way to contest what appeared to us to be a perverse designation by the National Archives of letters between the Queen and the governor general as “personal”. Contesting this designation was at the heart of proceedings.

Our view, as argued by our legal team led by Antony Whitlam QC, is that the palace letters are Commonwealth records, between the monarch and her representative in Australia, about political matters and at a critical time in our history. They form part of our national historical estate which it is the responsibility of the National Archives of Australia to preserve and provide access to, and in which all Australians should share.

The decision to retain the Queen’s embargo over these letters as “personal” is the latest iteration in the highly contested and still evolving history of the dismissal, which has long been cloaked in secrecy, error and even outright deception. The Kerr papers have given up some startling revelations over the last decade which have transformed our knowledge and understanding of the history of the dismissal of the Whitlam government.

As Whitlam’s biographer, I spent the best part of a decade working through previously unexamined archival material and in particular Kerr’s papers in the National Archives. It was in those papers that the previously unknown role of Sir Anthony Mason, then a high court justice, was revealed. Mason had secretly met with Kerr over several months, acting as advisor and guide for the governor general, and even drafting a letter of dismissal for him. His involvement remained hidden from the prime minister Gough Whitlam at the time, and from the Australian public and our history for a further 37 years.

Kerr’s papers also provided the first glimpse of the palace letters, extracts from some of the letters being among his papers and cited in his handwritten journal, and also of the role of the palace in the dismissal. There can be no doubt then, from what we already know, that the palace letters are extraordinarily important historical documents, as I set out in The Dismissal Dossier – the Palace Connection. Kerr had raised the prospect of dismissing Whitlam as early as September 1975, in a conversation with Prince Charles and subsequently with the Queen’s private secretary, Sir Martin Charteris. The palace agreed that “should this contingency arise” and if Whitlam sought to recall him as governor general, the palace would “try to delay things” in order to protect Kerr’s position as governor general.

This constitutionally improper and profoundly disturbing secret communication between the governor general and the palace over his own tenure is one of the still embargoed palace letters, from Charteris to Kerr in early October 1975. That these letters are now to remain secret is deeply disappointing – for our knowledge of the dismissal, for our history and our national independence. The palace letters will now remain embargoed on the instruction of the Queen, an absurd and humiliating situation for any nation.

I had hoped that by securing the release of the palace letters, all Australians could finally know the full story of the dismissal of the Whitlam government. While it is a disappointing outcome for our history, and for the right of all Australians to know their own history, this decision will only heighten the enduring questions over just how much the palace knew about the dismissal, and intensify the view that the palace was deeply involved.

We are in the remarkable position now that it is the Queen who will determine when, and if, we can see these critical documents in our history. I call on Malcolm Turnbull to make good his promise of three years ago to instruct the Queen to release these letters, although I hold out little hope that our once supreme republican prime minister will do so. The federal court’s decision to maintain the Queen’s embargo over our own historical documents will propel moves towards a republic. The lingering power of what Whitlam termed the “relics of colonialism” can only end when we are an independent nation with an Australian head of state – when we are an Australian republic.

Jenny Hocking’s latest book is The Dismissal Dossier

This article first appeared in the Guardian newspaper.

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