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.