JENNY HOCKING. High Court says ‘Release the Palace Letters’

Jun 1, 2020

In an emphatic 6:1 decision the High Court has ruled that the ‘Palace letters’ between the Governor-General and the Queen relating to the 1975 dismissal of the Whitlam government are Commonwealth records, ending the Queen’s embargo over them and opening them for public access under the Archives Act.

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This is an immensely significant decision for our history, for transparency, and for accountability of those at the highest levels of governance, and it ends decades of secrecy over a key aspect of the dismissal – the Queen’s correspondence with the Governor-General.

The Court’s ruling is a stark rejection of the National Archives’ denial of access to the Palace letters on the grounds that they are ‘personal’ – always an absurd description for letters written by two people at the apex of a Constitutional monarchy, during our greatest political crisis, and which ‘address topics relating to the official duties and responsibilities of the Governor-General’. As the majority described, ‘we cannot see how the correspondence could appropriately be described, however “loosely”, as “private or personal records of the Governor-General”’.

I first sought access to the Palace letters a decade ago and commenced legal action against the Director-General of the National Archives, David Fricker, in 2016 challenging the archives’ denial of my request to access the letters as ‘personal’. It is surely an unusual position for the National Archives, which describes itself as a ‘pro-disclosure organisation’, to contest this action at significant expense – initially of almost one million dollars – at a time of severe budget and staff cuts. Additionally, in finding in my favour the High Court ordered that the Archives pay all costs, and further ordered ‘that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking’s request for access to the deposited correspondence’. After four years of intense legal scrutiny and a resounding High Court decision, I expect the Palace letters to be assessed and made available to me without further delay.

In determining that the Palace letters are Commonwealth records, effectively official documents, the High Court found most compelling that they were deposited in the Archives by the Governor-General’s Official Secretary, Mr David Smith, acting in his official capacity and that Smith had also written the letter of deposit setting out conditions of access to them. Before lodging them in the Archives, the letters had been kept by Smith in the Government House ‘strong room under absolute security’ again in an official capacity, which scarcely suggested the letters were ‘personal’.

The High Court’s decision is also significant for its landmark interpretation of the Archives Act 1983 and the meaning of ‘Commonwealth record’ which the Court found includes the records of Governors-General and their correspondence with the Monarch, access to which must conform to the Archives Act. In ending the Queen’s embargo over the Palace letters, the High Court has asserted Australian law over the wishes of the Monarch – a situation which we might have thought existed since the 1926 Imperial Conference.

There are 211 of these historic Palace letters: 116 from Kerr to the Queen, mostly through the official secretary, and 95 letters from the Queen, all of them through her private secretary. Kerr also provided voluminous attachments to his own letters of press clippings, articles and other peoples’ letters, and it will be fascinating to see what Kerr included in those attachments and which versions of the deeply divided history he relayed to the Queen. Were the letters a reflection of events as they unfolded, or a representation of them?

Although we are yet to see them, we already know a great deal about the letters from details in Kerr’s papers where he left extracts from some, cited them in his Journal, and referred to them frequently in his letters to friends and colleagues. The extracts show that he was reporting to the Queen with peculiar frequency on his conversations and meetings with the Prime Minister, Gough Whitlam, and with other political figures particularly the leader of the opposition, Malcolm Fraser.

There is no indication that Kerr or the Palace ever informed Whitlam of the nature and extent of this highly unusual correspondence. This is particularly important since Kerr had long determined on a policy of ’silence’ toward Whitlam, and at no stage warned him of the prospect of dismissal, instead working with the Prime Minister to finalise details for the half-Senate election which Whitlam was to announce in the House of Representatives on the afternoon of 11 November 1975.

The Palace letters are of tremendous historical importance and our access to them will fill the most important gap in the history of the dismissal.

Buckingham Palace, David Smith and Kerr always denied that the Queen was in anyway involved in Kerr’s dismissal of the Whitlam government, yet it is clear from Kerr’s papers that through his extensive letters to the Queen, sometimes several in a single day, he had drawn the Palace into his thinking, into his consideration of options available to him, and in particular his concern for his own position as Governor-General.

Kerr was consumed by the possibility that Whitlam might seek his recall as Governor-General if Whitlam found out that he was considering dismissing the government, and Kerr raised his concerns and the need to protect his position with both Prince Charles and the Queen’s private secretary. That much we already know. How much further those discussions went, if at all, only the Palace letters themselves can tell us.

And with a High Court decision that has reverberated all the way to Buckingham Palace, we may be just about to find out.


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