High Court ruling opens the way to understanding Palace role in the dismissal

Genevieve Jacobs 30 May 2020 16
Parliament House on November 11, 1975

Crowds gather on the steps of Parliament House on November 11, 1975. Photo: Museum of Australian Democracy.

Closure is a much sought-after state following trauma and for those still angry about the Whitlam government’s dismissal almost 45 years later, there might be a glimmer of light.

Professor Jenny Hocking has mounted a determined battle for access to the letters between Governor-General Sir John Kerr and HM Queen Elizabeth about one of the most notorious moments in Australia’s political history. And on Friday, she won that battle.

The 211 Palace Letters, as they’re known, had been classified by the National Archives of Australia as personal communications placed under an embargo by the Queen.

They include Kerr’s briefings to the Queen on the political crisis prior to the dismissal and his explanation afterwards about why he exercised this power, and have so far been sealed from public examination.

The National Archives has argued that as private correspondence the institute could not be put under duress to produce the letters against the wishes of their original owners.

Professor Hocking, who is the inaugural Distinguished Whitlam Fellow with the Whitlam Institute at Western Sydney University, Emeritus Professor at Monash University, and former Director of the National Centre for Australian Studies at Monash University has argued for years that keeping the letters secret only fuels public distrust. She says Australians have a right to know the full story about what happened in 1975.

If the letters had been kept private, they could not have been released until 2027, and only then with the Queen’s permission.

But on Friday the majority of the High Court’s full bench (Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler and Patrick Keane) ruled that although the letters were personal and confidential in nature, they were the property of the official establishment of the Governor-General.

While Sir John had sought advice from Buckingham Palace about how to deal with the letters, the majority judgement noted that he didn’t appear to understand that he did not need to take their advice in its entirety as binding.

“Although Sir John Kerr understood the correspondence to have been within his power of disposition, he did not understand his choice as to the disposition of the correspondence to be unfettered.

“He understood its historical significance to be such that it needed to be preserved in the national interest. And he understood Her Majesty’s interest in its confidentiality to be such that he needed to consult with the Private Secretary as to the course he should take,” the majority judgement says.

But even the agreement that Official Secretary David Smith should deposit the letters with the National Archives in 1977 endorsed the argument that these were official documents of historic significance, rather than Sir John’s to dispose of as he wished.

“It cannot be supposed, for example, that Sir John Kerr could have taken the correspondence from the custody of the official establishment and destroyed it or sold it, and the sequence of events which resulted in its deposit with the Australian Archives demonstrates that such a possibility was never contemplated”.

The Archives’ decision to close the records for 50 years was in line with the Palace’s position as outlined in correspondence between Sir John and the Queen’s private secretaries and at the Queen’s personal request,

But the majority judgement finds that the letters are a Commonwealth record under the Archives Act and must, therefore, be made available for public access once the record is within the ‘open access period’. That period is measured 31 years after the work was created, meaning in effect that the letters should have been available from 2006.

Justices James Edelman and Michelle Gordon agreed the letters were Commonwealth records, although they published separate reasons for their decisions.

Noting in his judgement that Sir John kept the originals of the telegrams sent, the carbon copies of the letters sent, and the correspondence received, as part of the performance of his official duties, Justice Edelman said “Sir John’s expression of the desire to preserve the documents given their historical import, understood in light of his duties of public loyalty, militates powerfully against the originals having been created or received by him personally”.

The court has also ordered the National Archives to reconsider Professor Hocking’s request to access the letters and pay her legal costs.

Professor Hocking expects the archives to immediately release the documents and has told media that she would be horrified if that didn’t happen.

“We can no longer have a situation where the queen or monarch exercises any control,” she said.

“Even cabinet records, the most confidential records of government, are released after 20 years. Unless it has the Queen’s medical details in it, you would expect them to be released.”

Professor Hocking says she intends to travel to Canberra as soon as restrictions ease. There’s been no response from Buckingham Palace.

What's Your Opinion?

Please login to post your comments, or connect with
16 Responses to High Court ruling opens the way to understanding Palace role in the dismissal
John Moulis John Moulis 3:27 am 31 May 20

“Maintain the rage” Gough said on Tuesday. For three days they did. Then came an Aussie weekend at the beach in the sunshine which washed everybody’s cares away.

Election day driving through Sydney on the way back to Canberra. Kids on skateboards, sunny weather, almost a carnival atmosphere. Polling booths decked out in bunting and with cake stalls. Kids running around outside while their parents voted, not a care in the world.

The Dismissal was millions of miles away in the rear vision mirror…

HiddenDragon HiddenDragon 8:14 pm 30 May 20

I can’t help but feel that Jenny Hocking will need further assistance from her ace legal team before this is over – just as well that appeals to the Privy Council have been abolished.

Kim Kim 11:17 am 30 May 20

How do you know there were no orders from London Peter Mackay? The G-G’s official secretary (Sir David Smith) was very cosy with the Queen’s official secretary (Martin Charteris) and both were very aware of what was happening and this is highlighted in the High Court orders. Most importantly, the HC found that the arrangement in which the correspondence was held and deposited in the Archives lay with the official secretary even after Kerr’s death.

Stephen Saunders Stephen Saunders 10:45 am 30 May 20

Barring bombshells, the letters are just icing-on-the-cake. It’s been known for years, the Palace backed Kerr in writing, shortly after Kerr buttonholed Charles. Just one, of his many princely pratfalls.

The savvy Queen is on to Charles. Might partly explain, her apparent determination to live forever. Yet Morrison supports foreign royalty, to be our next head of state. His lame excuse is “system ain’t broke”.

Equally lame is the press release from NAA. Not a trace of explanation or apology. No firm release date. Just weasel words.

Peter Mackay Peter Mackay 10:18 am 30 May 20

My guess is that the Palace was making sure there was no blowback in their direction. After all, there was nothing HM could do about it.

Her only power is to appoint (and presumably dismiss) the Governor-General. Undoubtedly Government House and Buckingham Palace worked out a protocol to handle any advice from Whitlam. Insisting on written advice, for example, rather than a panicked midnight phone call.

But apart from that, all power and responsibility was entirely Australian. Both Whitlam and Kerr were responsible for their actions; there were no orders from London. Or the CIA.

    Andreas Gampino Andreas Gampino 11:33 am 30 May 20

    Possibly not: "In his papers, Kerr claims that he was in written contact with the Queen and her private secretary, and in oral and written communication with Prince Charles, about the prospect of having to dismiss the Whitlam government. According to Kerr, the Queen expressed (via her private secretary) a willingness to “delay things” in the event that Whitlam pre-empted Kerr and sought to have Kerr dismissed."


    Peter Mackay Peter Mackay 11:41 am 30 May 20

    Andreas Gampino Um, that’s what I just said. She wasn’t going to dismiss Kerr because she got a late-night phone call from Whitlam. HM is entitled to consider advice on a controversial matter, and to require written advice, presumably via courier.

    By the time that arrived, Kerr, Whitlam, and Fraser would have resolved the situation. If Whitlam had prevailed - as he might have if Kerr hadn’t ambushed him - then Kerr's resignation would have been heading to London, if not Kerr himself ahead of an angry mob.

    Andreas Gampino Andreas Gampino 11:43 am 30 May 20

    Peter Mackay Sorry, but you claimed there was nothing HM could do about it. The quote I provided said she could and may have considered it.

    So, now that the papers can be accessed we'll find out what the Queen knew and when she knew it.

    Peter Mackay Peter Mackay 12:07 pm 30 May 20

    Andreas Gampino Well, what do you think HM could have done? The only power she has in Australia concerns the Governor-General. She can’t tell him what to do, and she can’t dismiss him without the Australian PM advising her.

    She may have provided some counsel to Kerr, but she couldn’t say “do this” or “don’t do that”.

    Presumably Kerr kept her informed but I’d bet my bottom dollar that if anything was coming from the Palace, it would be, “don’t be hasty, we'll give you time to work things out in Canberra”.

    Kerr should have sat down with Whitlam and laid out the situation so he knew the risks. Dismissing the Governor-General when he didn’t have Supply would just ensure that the crisis would deepen and Fraser would likely continue to delay a vote until Whitlam was forced to call an election he would lose.

    I’d be very surprised if there were any real surprises in the correspondence. Paul Kelly has been on this thing for decades and published multiple books dissecting the events based on interviews with all the major players.

    Of course, the Whitlam diehards prefer to think there was some conspiracy rather than the simple fact that Whitlam's government was so chaotic by that stage that Fraser seized the opportunity. Fraser wanted Whitlam's job, Kerr wanted to keep his, and HM was probably hoping they'd leave her in peace.

    Janet Mulgrue Janet Mulgrue 3:13 pm 30 May 20

    Peter Mackay for starters I would take any research done by Paul Kelly said with a grain of salt since he is a know Murdoch puppet . And yes before you say it I am a lefty and I believe there was more to the story than we know.

    Peter Mackay Peter Mackay 3:31 pm 30 May 20

    Janet Mulgrue Aha! Bill Gates and the 5G mind control chips in the vaccine.

    Yes, it’s always good to believe there was a conspiracy. Saves having to accept that Whitlam screwed up.

    Peter Mackay Peter Mackay 3:36 pm 30 May 20

    Janet Mulgrue Don’t do it!

    Janet Mulgrue Janet Mulgrue 3:40 pm 30 May 20

    Peter Mackay no Whitlam was screwed by a party who had been in power for way too long and had a divine right to rule belief.

    Peter Mackay Peter Mackay 3:49 pm 30 May 20

    Janet Mulgrue Of course. It was all someone else's fault. There was no Khemlani, no revolving door of ministers, no plummeting polls.

    Fraser wouldn’t have moved if he didn’t think the voters would back him up.

    And guess what. They did. They gave Fraser a big tick. Blame democracy, Janet. The voters backed Fraser and they kept on backing him until Bob Hawke showed up. Bloody good PM, the old Hawkey. He didn’t screw up.

    Peter Mackay Peter Mackay 4:09 pm 30 May 20

    Janet Mulgrue Sure. Just like Whitlam. But when the people got a say, they picked Fraser over Whitlam every time until Whitlam got the message and retired.

    Hocking thinks there was a conspiracy as well. Can’t accept the facts. Whitlam screwed up and his own man gave him the boot.

    Janet Mulgrue Janet Mulgrue 4:11 pm 30 May 20

    Peter Mackay time will tell

CBR Tweets

Sign up to our newsletter

Region Group Pty Ltd

Search across the site