PROFESSOR JENNY HOCKING The ‘Palace letters’ case at the High Court

Echoes of the Governor-General Sir John Kerr’s vice-regal dismissal of the Whitlam government reverberated across the High Court this week, as the long-running Palace letters case came before the full bench on appeal.

This landmark case which I brought against the National Archives of Australia in 2016 has provided a unique opportunity to challenge long-standing assertions of Royal secrecy, even over the records of Australian Governors-General, through the prism of Sir John Kerr’s secret ‘Palace letters’ with the Queen, which have been embargoed ‘on the instructions of the Queen’.

All seven justices of the High Court heard the appeal, reflecting its constitutional significance and legal interest. Our appeal was led by Bret Walker SC with Tom Brennan, and with Corrs Chambers Westgarth instructing. The central question for the Court is, as it has been from the outset, whether the Palace letters are ‘personal’ as Archives claim and therefore the property of Sir John Kerr or, as we argue, Commonwealth records available for public release under the provisions of the Archives Act and not at the whim of the British monarch. As Bret Walker SC contended, the Palace letters are Commonwealth records, being ‘correspondence constituting and produced for the purposes of discharging the functions and the duties of the Governor-General’ and the property of the Commonwealth.

Whatever the final decision of the High Court, it will have major implications – for the interpretation of the Archives Act, for our national control over our historic archives including Royal correspondence and, where this case began, for public access to the Kerr-Palace correspondence regarding the dismissal of the Whitlam government.

We have faced a formidable institutional force in seeking access to the Palace letters from the National Archives of Australia, even more so with the involvement of the Attorney-General’s department at this final appeal. The federal Attorney-General joined the Archives in the High Court appeal in claiming that the correspondence between the Queen and the Governor-General is personal to and the property of Sir John Kerr and closed to the Australian public, apparently according to the conditions set by Kerr himself.

Questions on Notice in parliament from Julian Hill MP, Labor member for Bruce, have shown that Archives has spent over $700,000 fighting my request for public access to the Palace letters. Attorney-General Christian Porter responding to Hill’s questions last week revealed that his department has been paying 25% of Archives’ costs in meeting the High Court appeal since October 2019.

The Morrison government is clearly determined to fight our efforts to secure access to the Queen’s correspondence with Kerr at the time of the dismissal of the Whitlam government. As a crowd-funded campaign reliant on the generosity of supporters and an exceptional pro bono legal team, this federal intervention in kind and now in significant financial commitment, accentuates both the asymmetrical nature of this legal action and its significance.

It is interesting to note in relation to Kerr’s claimed ‘personal’ conditions of access to the Palace letters, that the original version of those conditions was drawn up by the Governor-General’s official secretary Mr David Smith after Kerr had left office, and they have since been purportedly changed, twice, by the Queen after Kerr’s death. The access conditions are no longer, if they ever were, Kerr’s own conditions of access and the letters are now embargoed expressly ‘on the instructions of the Queen’, with the Queen’s private secretary having an effective final veto over their release. Kerr himself believed that given its ‘archival importance‘, his correspondence with the Queen ‘would be preserved and would be part of the archives later available for historians’.

In asserting the ‘personal’ nature of these letters and allowing Kerr’s own ‘personal’ conditions of access to prevail rather than the provisions of the Archives Act, the National Archives’ has been forced to concede some startling yet ineluctable corollaries of that personal ownership. As ‘personal’ property, this ‘volatile’ correspondence as the Solicitor-General, Stephen Donaghue QC for the Archives described it, could be removed from the Archives, sold or even destroyed, despite their acknowledged historic significance. Bret Walker SC, arguing against this appalling prospect that Governors-General might keep for themselves the product of their duties of office – in this instance the Palace letters – for their later private sale, or auction at Sotheby’s, described it as ‘an absurd proposition’.

The damage to our national archival heritage and to our history from this alarming conclusion of the Palace letters as personal property is obvious. It is surely also a most unusual and disconcerting position for the National Archives of Australia, whose core function includes the ‘preservation’ of our national archival heritage, to argue so strongly and with such expansive financial commitment that part of the historical heritage of the nation be considered ‘personal’ and open for removal or even destruction.

Second, the Archives pursued an unfortunate analogy to questions of ownership of ministerial documents, leading down a rabbit-hole of which Alice in Wonderland would be proud before emerging with the remarkably broad proposition that copies of ministerial documents could belong to the minister personally. If so, they could likewise be removed, shredded, sold or redacted. National security advisors might have something to say about that broad brush.

Finally, the Archives’ repeated focus on an argued ‘convention’ of Royal secrecy over the Palace letters based on British practice in its Royal archives at Windsor, was given short shrift by Bret Walker as ‘an antipodean non-parallel’ that would ‘tie us to the mother country’ over the question of ownership of our Governor-General’s correspondence with the monarch. Yet, with the National Archives’ deference to the Queen’s embargo over the Palace letters, those ties over our history and our archives remain firmly in place. This remnant of colonialism is simply untenable for Australia as an independent nation and is denying us access to and control over an extraordinarily significant part of our archival heritage.

I hope the High Court agrees and that finally, after four years of legal process, the Palace letters can be released and the full story of Kerr’s dismissal of the Whitlam government will be known.

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. Her appeal against the decision of the full Federal Court in the ‘Palace letters’ case was heard by the High Court of Australia on 4 February 2020. You can support the campaign to Release the Palace letters by donating here.

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4 Responses to PROFESSOR JENNY HOCKING The ‘Palace letters’ case at the High Court

  1. Andrew Fraser says:

    The involvement of the Australian Government via the Attorney-General’s department is most disturbing. It places them on the side of secrecy and concealment. But the bigger point is that the release of the letters is plainly in Australia’s interests, so we can obtain a better understanding of a major event in our history. For the Australian Government to be against this is, quite frankly, un-Australian.

  2. J.Donegan says:

    Thank you Professor Hocking for this important update.
    In spite of my belief that Justice Flick’s opinion in the Full Federal Court is the best approach, now that things are once again within the judicial realm, I am beginning to wonder if our High Court does in fact have the collective will to ignore any remnant Imperial connections and thus be prepared to reject the notion, expressed by Professor Twomey (P&I 05/02/20): “…[that]… the Archives Act could be interpreted as operating in a manner that would deny Australians control over and access to such important records of their history.” Unfortunately that lingering doubt remains, and is not helped by the Government’s active support of the Archives.

  3. Michael Rogers says:

    A very important precedent will be established if the status of the letters is rectified.
    However is it likely that the letters from the palace will be anything other than perfunctory and non-committal? Or, could Whitlam’s bestowing on Betty Windsor the title of ‘Queen of Australia’ led her to believe that she had an actual role to play in the doings of the ‘arse-end of the Earth’?

  4. Peter Johnstone says:

    Australia is very fortunate to have a person of Jenny Hocking’s integrity and commitment with the pro bono legal team and others pursuing this important matter. The government owes its constituents a rational explanation for their apparently indefensible position which is certainly not in the interests of the Australian people.

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