JENNY HOCKING. The ‘Palace letters’ case heads to the High Court

Jul 2, 2019

Professor Jenny Hocking’s long-running case against the National Archives of Australia seeking the release of the secret ‘Palace letters’ about the 1975 dismissal of the Whitlam government by the Governor-General, Sir John Kerr, stepped up again this week with the announcement of a Special Leave hearing in the High Court of Australia on 16 August.

The ‘Palace letters’ are now 44 years old, they are held in our National Archives in Canberra and closed to the public, embargoed by the Queen until at least 2027. Since the Queen’s private secretary and the Governor-General’s official secretary must both approve their release even after that date, it is quite possible that they will never be released despite the great public interest in them. In 2016 I commenced an action in the Federal Court seeking the release of the Palace letters, arguing that letters between a Monarch and the Governor-General are Commonwealth records and not ‘personal’ communications as the Archives claim.

Even though it was acknowledged during the case that the Palace letters relate to the functions and powers of the Governor-General and to Kerr’s exercise of them, in a split 2:1 decision the full Federal Court ruled that the letters are ‘personal’, not Commonwealth records, and so the Queen’s embargo remains. In his strong dissenting judgement Justice Flick however found that it was, ‘difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property’, than the Palace letters.

These letters are extraordinarily significant historical documents concerning one of the most controversial episodes in our political history, the dismissal of the Whitlam government by the Governor-General, the Queen’s representative in Australia, and it is troubling that we are denied access by her own embargo. All Australians have a right to access such key documents in our own history, and not only when the Queen tells us we can. The only avenue left to us now to secure their release is through this appeal to the High Court of Australia. I thank the great generosity of all supporters of the crowd-funding campaign, Release the Palace letters – the High Court Appeal’, the legal team, Bret Walker SC and Tom Brennan, and Corrs Chambers Westgarth, and the Grata Fund.

I have long argued that the release of the Palace letters would at the very least reveal the extent of the Palace’s prior knowledge of Kerr’s planning to dismiss the Whitlam government and even more disturbingly, as claimed by Kerr, the agreement of the palace to protect his position as Governor-General if Whitlam moved to recall him. Kerr’s greatest fear was always for himself, that Whitlam might hear of Kerr’s now well-established intrigue and deception and ‘get in first’, by advising the Palace that Kerr should be recalled. Kerr had first approached Prince Charles about this concern in September 1975, two months before the dismissal, Charles then relayed this ‘contingency’ as it was termed to the Queen’s private secretary, Sir Martin Charteris. Kerr writes that it was agreed by Charteris in one of the embargoed Palace letters, that if this ‘contingency’ arose and Whitlam contacted the Palace before Kerr had dismissed the government, the Palace would ‘try to delay’ things, and Kerr refers elsewhere in his papers to ‘Charteris’ advice to me on dismissal’.  A more profound breach of the defining relationship between the Monarch and the Prime Minister in a Constitutional monarchy can scarcely be imagined. The release of the Palace letters, were it to show this arrangement as described by Kerr, would be devastating.

It is impossible to overstate the significance of this arrangement between the Palace and the Governor-General, secret from the Prime Minister and directly concerning the dismissal of his government. The appointment and recall of the Governor-General in a constitutional Monarchy is unquestionably and only made by the Monarch on the advice of the Prime Minister. This has been the case since 1926 when the Balfour Declaration recognised the equality of status of the dominions and the United Kingdom.

Kerr’s claims of such an arrangement with the Palace were given an unexpected boost with the recollections of Sir William Heseltine, the Queen’s assistant private secretary at the time of the dismissal. Interviewed for the ABC’s The Crown and Us, Heseltine made the astonishing concession, that if Whitlam had got ‘first to the telephone’ and contacted the Palace about Kerr’s position, the Palace would have responded with a ‘policy of political delay’ and not, as is required of a constitutional Monarch, simply acted on the Prime Minister’s advice.

By entering into this private agreement with the Governor-General secret from the Prime Minister, the Palace had become a party to Kerr’s deception of Whitlam and a facilitator of his actions. How else could Kerr have understood this quasi-imperial arrangement by the Queen’s private secretary, who speaks for and on behalf of the Queen, to thwart the advice of the Prime Minister and protect Kerr’s tenure should Whitlam seek to recall him? There is no doubt ,as I argue in The Dismissal Dossier, that Kerr took these secret discussions with the Palace as a ‘Royal green light’ for the action he was to take. With the Queen’s continuing embargo over the Palace letters, precisely what transpired between the Palace and Kerr regarding the dismissal remains hidden from us.

The Palace letters case has exposed the inherent conflict of interest at the heart of the Queen’s embargo over her ‘personal’ correspondence with the Governor-General – that the letters not only concern the dismissal of the Whitlam government, they also concern her knowledge and role in it. The history of the dismissal, marred by error, distortion and secrecy for so long, can never be put right while this vested Royal embargo remains.

Jenny Hocking is emeritus professor at Monash University and 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.

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