Extract from The Guardian
The
long-running “Palace letters” case over the Queen’s secret
correspondence regarding the 1975 dismissal of the Australian prime
minister Gough Whitlam heads back to court on Wednesday, with an appeal hearing before the full bench of the federal court in Sydney.
The case against the National Archives of Australia began in 2016 when I initiated action in the federal court, seeking the release of letters between the Queen and the governor general, Sir John Kerr, relating to Kerr’s dismissal of the Whitlam government.
The “Palace letters” are held in the National Archives in Canberra where they are maintained at our expense, and kept secret from us. The letters have been embargoed by the Queen, potentially indefinitely, on the grounds that they are “personal” communications with the governor general. The legal case has centred on this vital description of the letters as “personal”. The consequence of this simple label “personal” is no mere legal nicety; it locks these historic letters beyond the reach of the Archives Act, which relates only to Commonwealth records, and keeps them from the usual open access provisions under the 30-year rule, according to which they would now be open.
It is difficult to reconcile the label “personal” for any
letters between the governor general and the Queen, two positions at the
apex of our system of constitutional monarchy, let alone those written
at a time of intense political upheaval and regarding the dismissal of a
prime minister and his elected government. The label “personal” for
these formal written communications, which Kerr himself described as
“despatches”, simply doesn’t pass the pub test. The legal issues on
which the case turns are quite different and in March 2018 Justice Griffiths ruled
that the “Palace letters” are “personal”, effectively continuing the
Queen’s embargo of them. While Griffiths recognised the “clear public
interest in the content of the records”, he also noted that “the legal
issues … do not turn on whether there is a public interest in the
records being published”.The case against the National Archives of Australia began in 2016 when I initiated action in the federal court, seeking the release of letters between the Queen and the governor general, Sir John Kerr, relating to Kerr’s dismissal of the Whitlam government.
The “Palace letters” are held in the National Archives in Canberra where they are maintained at our expense, and kept secret from us. The letters have been embargoed by the Queen, potentially indefinitely, on the grounds that they are “personal” communications with the governor general. The legal case has centred on this vital description of the letters as “personal”. The consequence of this simple label “personal” is no mere legal nicety; it locks these historic letters beyond the reach of the Archives Act, which relates only to Commonwealth records, and keeps them from the usual open access provisions under the 30-year rule, according to which they would now be open.
The campaign to release the letters now continues with our appeal against this decision, to be led by Bret Walker SC with Tom Brennan, instructed by Corrs Chambers Westgarth, all working on a pro bono basis. As it stands, the Australian public are denied access to critical documents in our history at the behest of the Queen, with stark implications for our national independence and political autonomy. As the Labor federal member for Bruce, Julian Hill, argued, “the very notion of ‘personal’ letters between the Monarch and the governor general offends all concepts of transparency and democracy”.
A series of dramatic revelations, many of them from Kerr’s papers, has transformed that early history irrevocably. The critical revelation was the role of the former high court justice Sir Anthony Mason as Kerr’s secret confidante and guide over several months, whose role included drafting for Kerr a letter dismissing Whitlam. This process of historical correction through revelation continues today, driving our efforts to release the “Palace letters” in order to establish just what the Queen, Prince Charles and the Palace knew of Kerr’s planning and intentions in dismissing the Whitlam government.
As might be expected, the case has generated great interest in Buckingham Palace. The Queen’s private secretary has been in contact with Government House throughout proceedings and has even made public some of these “personal” letters – somewhat perversely in order to support the Archives’ case that the letters should not be released. Those letters, part of the “Palace letters” to which I was denied access, were then released and adduced into evidence.
The “Palace letters” case has also raised fundamental and at times troubling questions about the role of the National Archives in preserving our historical records and ensuring public access to them. I have detailed elsewhere my grave concerns at revelations during the case that a duplicate set of the Palace letters to which I had also requested access in 2011, should already have been open for public access since 2008. Instead, Archives had informed me that these copies of the Palace letters were “completely closed” and embargoed by the Queen in precisely the same way as the original “Palace letters”. This was not correct. It was revealed during proceedings that in fact these copies of the “Palace letters” should have been released to me in 2011 when I first requested them. Once this startling information had been revealed, the copies of the “Palace letters” should then have been immediately released to me. However, unknown to me or the legal team, new terms of access for these duplicate letters were hastily arranged with the National Archives and signed just three weeks later, firmly closing them to us.
In many respects the Archives increasingly appears as gatekeeper to our national historical records rather than a protector and facilitator of public access to them. It was recently revealed through parliamentary questioning that the National Archives has spent close to $1m in recent years fighting requests for public access to its records. Approximately half of this was spent fighting the “Palace letters” case, which seeks to give all Australians access to the Queen’s correspondence with the governor general.
Despite these difficulties our legal team remains optimistic that the “Palace letters” will be recognised as commonwealth records and released – by a decision of an Australian court and not the Queen. These letters are a critical part of the history of the dismissal of the Whitlam government which all Australians have a right to know. It is utterly inappropriate for any independent nation that such historical documents can remain secret from us at the behest of the Queen. This week’s appeal will take us one step further in our efforts to release the “Palace letters”, so that the full story of the dismissal might finally be known.
• Jenny Hocking is emeritus professor at Monash University, a 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. This piece was originally published on John Menadue’s Pearls and Irritations blog.
No comments:
Post a Comment