Professor Jenny Hocking writes that the release of the palace letters will now be determined by an Australian Court and according to Australian Law – not by the Queen ‘a foreign monarch’ in the words of Prime Minister Malcolm Turnbull.
The Federal Court case against the National Archives calling for the release of the ‘Palace letters’ quietly achieved an historic milestone this month. It might have seemed a routine, even unremarkable short preliminary hearing in the Phillip Street courtroom 21B, and yet the implications of the commencement of proceedings are anything but.
The ‘Palace letters’, between the Queen and the Governor-General, Sir John Kerr, at the time of the dismissal of the Whitlam government, are designated ‘personal’ and embargoed until 2027 ‘at the instruction of the Queen’, after which they may only be released with the Queen’s approval. With the Federal Court case under way however, 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 Prime Minister Malcolm Turnbull.
This is a dramatic development, a reassertion of Australian sovereignty over these critical documents in our history, despite long-standing claims of Royal control. It is just five weeks since I commenced this Federal Court action against the National Archives of Australia, with the support of a team of lawyers working on a pro bono basis and with an important crowd funding campaign 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 has been exceptional and we have already reached the half-way mark in our target. This generous public support is vitally important to enable the case to go through to the highest judicial level required. The next big date in the legal calendar to release the Palace letters will be a directions hearing on 14 February 2017 in the Federal Court in Sydney.
The ‘Palace letters’ case has brought 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 continued existence of this arcane imperial political presumption is astounding and completely at odds with a modern parliamentary democracy. The ‘Palace letters’ case will 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.
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. The Palace letters case raises 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]
In a further development in the Palace letters case, the Labor member for Bruce, Julian Hill MHR, raised concerns over the Queen’s continued control of the letters in a strong statement in the House this week. Hill observed that, ‘the very notion of “personal” letters between the Monarch and the Governor-General offends all concepts of transparency and democracy’. Hill has put forward a private members motion for debate calling on the government to take steps to secure the release the Palace letters, as ‘a matter of our national history which should be made available to the Australian people’. Julian Hill’s motion on the Palace letters will be debated on Monday 28 November, with the Shadow Attorney-General, Mark Dreyfus QC, also speaking to it.
This parliamentary debate marks a significant moment in the campaign to release the Palace letters. With political and public pressure growing, the continued secrecy over correspondence between the monarch and the Governor-General at such a critical time in our history is looking increasingly precarious.
Professor Jenny Hocking, Whitlam biographer and author of Gough Whitlam: A Moment in History, Gough Whitlam: His Time and The Dismissal Dossier: Everything You Were Never Meant to Know About November 1975. National Centre for Australian Studies, Monash University.
Donations in support of this important legal challenge can be made at:https://chuffed.org/project/release-the-palace-letters. You can also find the campaign on Twitter and Facebook.