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

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.

The high court – Wikipedia

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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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. You can follow Jenny on Twitter @palaceletters.

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

  1. I hope the Royalists are not plotting and scheming.

  2. Avatar Fletcher Cole says:

    In the overall dynamics of Commonwealth affairs, considerations of sensitivity ultimately control public access to records, irrespective of their evidential or other value to the researcher. This tallies with Professor Hocking’s experience to date. What researchers should be ever-so grateful for is that the dominant agency preoccupation with “sensitivity” or “ethic of secrecy” (as other commentators have characterised it) is moderated on their behalf by the Archives Act and in the intricate set of policies and practices embodied in the organisation of the Archives. The Archives is the meat in a somewhat top-heavy sandwich.

  3. Avatar Jim Anthony says:

    Jenny Hocking’s efforts are, of course, to be warmly applauded. But given the substantive language of the High Court’s decision in relevant part, this ball game may be far from over. It remains to be seen whether the Court’s 6-1 Decision is the end of the beginning or the beginning of the end. I rather think that this may well be just the end of the beginning. The Defendants will play for time because they realize full well that short term procedural delays will keep full disclosure at bay in the long run. This is another one of those instances in history when the short term is much more important than the long term. Keynes is still relevant: In the long term we’re all dead — or most of the relevant players are. And Pyrrhic victories are just that: Pyrrhic victories.

  4. Avatar George O'Farrell says:

    Congratulations Professor Hocking on a battle well fought and rightly won. It is hard to conceive of correspondence between public officials—in this case the Queen and the Governor-General—likely to be personal. Perhaps if both shared an interest in, say, horses? Anything of an official nature must surely be a matter of public record.

  5. Avatar John Waddingham says:

    Asserting this correspondence was ‘personal’ always failed the pub test. But the High Court didn’t say ‘Release the Palace Letters’. It ordered NAA to reconsider the access request.

    By law NAA redacts or restricts access to materials which may damage Australia’s international relations or breach a confidence. If my experience of access limits to NAA-held foreign affairs documents is any guide, I’d expect Jenny Hocking to be first offered something like this:
    (1) John Kerr’s letters but with redactions of queenly quotes or paraphrases;
    (2) Nothing substantial from the Palace side until 2027+

    Unless the Queen agrees to release them.

  6. Allan Patience Allan Patience says:

    Jenny: You have made a major contribution to the democratic health of Australia. I agree with an observation in today’s “Age” that you should be Australian of the Year. Thank you for your scholarly courage and persistence.

  7. Avatar William Dejong says:

    Not yet a done deal. National Archives could claim an exemption under section 33 of the Act on one of several grounds – damage to security, defence,international relations, breach of confidence. Having fought so hard and at great cost against release this cannot be ruled out. Let’s hope not. Time for the Australian public to know the story.

  8. Avatar Steve Jordan says:

    Congratulations to Jenny Hocking for the victory of her team in persuading the High Court to order David Fricker, director general of the Archives, to re-consider her application for access to the Palace Letters.
    I wonder if this is just the start of another long haul; the Archives are under the umbrella of the Attorney General,
    1. the person who charged Bernard Colleary and Agent K over the whistleblowing of the bugging of the East Timor offices and where the trial will be largely in secret
    2. the person who had Agent J charged, tried and imprisoned, all in total secrecy, over offences against official secrecy legislation.
    David Fricker is a former Chief Information Officer of ASIO, an organisation which embraces restrictions on knowledge.

    So, Jenny, keep your legal team together; my betting is that the documents will be slow in coming, heavily redacted in the first instance, the possible target of injunctions from the Palace….watch this space! Thank you again for your magnificent efforts so far.

  9. Avatar Michael Faulkner says:

    So many Australians applaud you Jenny Hocking, and have supported you in your persistence to get to the truth of the matter about the Whitlam dismissal, specifically, John Kerr’s clandestine role in it. I hope your investigation of the letters proves to be fruitful in this regard. The High Court has made a significant and historical judgement in the interests of the people of Australia.

    It is apposite that your post today should appear on the Pearls and Irritations web-site of John Menadue, who observed the relationship between Gough Whitlam and Rupert Murdoch as close range. My recollection from John Menadue’s account is that he was the messenger of bad news from Whitlam to Murdoch in 1973, that the former would not countenance the later for a diplomatic post to London.

    Perhaps this was Whitlam’s worst political decision, though one could not disagree with the sentiments behind it. For within just 2 years, Murdoch, through his media’s prognostications, went on to contribute significantly to Whitlam’s loss of popularity in the general electorate by late 1975, then in the 40 years following , he went on to become a defacto ruler of Australia as his media empire expanded not just in this country, but the English speaking world.

    Australia might have been very different had Whitlam granted Murdoch his wish become a diplomat in London in the mid 1970s.

  10. Avatar Nasser Mashni says:

    Congratulations and well done!
    Perhaps we may find out who was at the end of the leash of this cur!

  11. Avatar (Dr) John CARMODY says:

    I am as excited as anyone by the 6:1 judgement which the High court released last Friday in response to Professor hocking’s courageous appeal (and its long associated campaign) against the refusal of the Director-General of the Australian Archives to make the correspondence (from 1975 – with subsequent actions by Sir John Kerr, Mr David Smith and Queen Elizabeth II) available to her for research purposes.
    It is exceedingly important that the Court has — rightly — declared that this material is to be regarded as Commonwealth property (i.e. OUR property). It is also significant that the Court has ordered that the the DG (and, of course, the Australian Government which has steadfastly supported Mr Fricker) must pay all of Professor Hocking’s costs in bring this matter forward.
    However, our rapture must be substantially modified. The court has merely instructed that the DG (a former senior official of ASIO) “reconsider” her application.
    Yes, I agree that it would be “courageous” for him (and the Government) to take that decision less than seriously; yet, it appears still legislatively open for him to decide that – on grounds of national “security” or “interest” — for some of the material to be withheld or censored.
    For that reason, I consider that we need somebody else to “reconsider” the matter. How can we have faith that someone who has so doggedly blocked our legitimately knowing what is in those hitherto closed files — and hence has obstructed our right to more fully know and understand our history — will disinterestedly reassess those previous decisions? I believe that two people, say Professor John McMillan (the former Commonwealth Ombudsman) and Mr Tim Robinson (until very recently the Director of the University of Sydney Archives) — both of whom well understand history and public accountability — should be appointed to relieved Mr Fricker of that (for him) impossible responsibility.

  12. Avatar Peter Valentine says:

    Thankyou Jenny … perhaps like others I never had a gram of respect for Kerr and felt his appointment was one of Gough’s few failures. But the revelation you will now be able to bring, a careful analysis of the interactions and how they reflect on both sides of the correspondence, might give us more clarity of a very dark moment in our history. We may need better legal and even constitutional reform as a result. It remains appalling that despite our “separation” from the UK we are still subject to its undemocratic ideals. Hopefully this might be another nail in the coffin of the “born to rule” among us.

  13. Avatar John Waddingham says:

    The idea that this particular correspondence could be described as “personal” has always failed the ‘pub test’. Great to see that the High Court essentially agreed.

    Though I would not be confident that (post-High Court) NAA assessment of the correspondence will result in it being fully released any time soon. My own experience seeking access to Dept of Foreign Affairs papers may be instructive.

    The most common reasons for document redactions or closures are because access may/will damage Australia’s international relations or because they contain confidential material provided by a foreign entity. Another part of Section 33 of the Archives Act requires NAA to not release material which may breach a confidence.

    My observation is that if the foreign source does not agree to release, it is not released. My impression is there is no set time limit to this foreign veto. It would probably take an AAT or court case to test it.

    So if my experience is at all relevant to the trickier Palace Letters matter, then my pessimistic view of what Prof Hocking will see of the Palace letters in the first instance will be:

    (1) John Kerr’s letters but with redactions of any direct reference to what the Queen has said,
    and (maybe, but much less likely),
    (2) the Queen’s letters with redactions of all substantive material. Much more likely: nothing from the Palace side until at least 2027.

    Unless of course the Queen says it is ok to release them.

  14. Avatar Ted Egan says:

    The Republic has always been a potentially divisive issue, as has the flag, thereby to be avoided. Until now. The Queen, undoubtedly an admirable person, is not going to live much longer. Grab the opportunity, Albo, otherwise you run the risk of doing a Calwell/Hayden/Shorten: they too were good Labor types who never quite made it. We can be a changed and better country post Covid. Let’s have a functional Constitution.
    PS. Congrats Jenny Hocking for a battle valiantly fought – and won!

    • Avatar Lorraine Osborn says:

      My sentiments exactly on every point. Australia needs a Bill of Rights and regular review of the Constitution and the laws that come from it. Jenny has done a great and good service to the nation and for the national story. The Director General of the National Archives must not continue to obstruct the release of all these documents. Thanks again Jenny, you are a living national treasure.

  15. Avatar David Maxwell Gray says:

    The long saga where the authorities argued the inarguable, demeaning modern democratic principles in favour of archaic monarchical, even feudal ones, has ended. It shows we now need to revise and update our constitutional connections with the monarchy, as the decision of the High Court has done to some extent. Well done, Professor Jenny Hocking! The Australian people owe you a great debt of gratitude.

  16. Avatar John Richardson says:

    Hello Jenny.

    Congratulations on your well-deserved success in the High Court.
    Whether they realise it or not, every Australian is a beneficiary of your outstanding efforts to shed light on a very dark period in our history.
    Well done & I can’t wait to hear news of your further discoveries.

  17. Avatar Pera Wells says:

    Congratulations Jenny on an historic achievement!

  18. Avatar Michael Lester says:

    congratulations jenny on all the years of your scholarly work, the struggle to access these papers and your success in that regard. an important win for our democracy and our historical record. ‘truth will out’ and i am looking forward to your reading and assessment of these papers. all the best.

  19. Avatar Ian Bersten says:

    or the National Archives, which describes itself as a ‘pro-disclosure organisation’, to contest this action at significant expense – initially of almost one million dollars. We need to know who is giving the orders to waste a million dollars on this. Who is in charge and controls this expenditure???? They must know what they are hiding.

  20. Avatar Vic Langsam says:

    I noted the director of the archives made an interesting comment when interviewed on the ABC television news. He said the Kerr Queen papers need to scrutinize first, before being made public.

    • Avatar Peter Small says:

      We can only guess what may be removed or censored before Professor Hocking is allowed access! Or years ago for fear of such a high court decision!
      And yes Professor Hocking congratulations great achievment and so much determined work over such a long period.

  21. Avatar George Wendell says:

    For many of us out there that lived during the times of Whitlam’s dismissal who have always had questions about what really happened behind the scenes but never allowed to know, this is a great step forward.
    Thank you immensely Jenny Hocking for your years of dedication, persistence, and steadfast commitment in making these letters see the light of day.

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