What we learned in the court case to release Queen’s secret Dismissal letters
The main thing we learned is that even our supposedly republican Prime Minister won't stand up to the Queen for the right of all Australians to access key information about our history, writes Gough Whitlam biographer Jenny Hocking.
The Federal Court case against the National Archives of Australia, seeking the release of the Palace letters, which are embargoed by the Queen, concluded in Sydney last week. The case centres on the critical question of whether these letters, between the Queen and the then-governor-general, Sir John Kerr, at the time of the dismissal of the Whitlam government, are “personal” rather than Commonwealth records.
The archives claims that the Palace letters are not Commonwealth records and are not therefore subject to the Archives Act, which would have required their release in 2005. In doing so, they have accepted the designation of “personal” given to the letters when they were lodged by David Smith, the governor-general’s official secretary, after Kerr had left office. They are embargoed on the instructions of the Queen until 2027, after which date her private secretary retains a veto over the release of these important historical records.
One of the most remarkable outcomes of these proceedings is that it has secured the release by Buckingham Palace of two “personal” letters between Kerr and the Queen’s private secretary written in 1976, in a rather counter-intuitive effort to support its claim that the Palace letters are validly designated personal and should remain closed. The selective release of some apparently personal letters by Buckingham Palace draws into serious question its use of the label “personal” in general for all correspondence between the Queen and the governor-general, regardless of content. It does not appear to have occurred to either the Palace or their emissaries that such a ready breach of the label “personal” only highlights its inappropriate use when it can be so readily overturned if deemed to suit its purposes.
The case has also shone a rare light on the inner workings of the office of governor-general and the colonial presumptions underpinning it, much of which would shock those who believe that even as a Constitutional monarchy we have long since been freed of the residual colonial ties. Quasi-colonial servility is alive and well in Yarralumla. The mere fact that the Queen can still prevent us from seeing her correspondence with the governor-general highlights the vice-regal relationship as one of the few remaining “colonial relics” with lasting impact on Australian governance and history.
In summing up our case that the Palace letters are Commonwealth records, Antony Whitlam QC pointed to the extraordinary corollary of the archives’ claim that the Palace letters are personal and are not owned by the Commonwealth. If they are not owned by the Commonwealth, Whitlam asked, then who does own them? The archives contention is quite remarkable — the Palace letters are owned by Bashford. And who, you might ask, is Bashford? She is the daughter of Sir John Kerr’s second wife, who inherited her mother’s estate and with that, apparently, Kerr’s residual estate. So, while Australians are denied access to the Palace letters according to the Queen’s embargo, Bashford alone has access to them and ultimate control over them. She could withdraw them from the archives — and indeed has already revised the conditions on them — she could destroy them, sell them to a foreign government or even release them to Julian Assange and WikiLeaks. Such is the strange predicament of the Palace letters as “personal” records not owned by the Commonwealth.
A final intrigue came with a parallel exchange being played out in the Parliament while the case was proceeding. The Labor member for Bruce Julian Hill was pursuing the Prime Minister Malcolm Turnbull over Turnbull’s rash promise three years ago that he would “resolve the impasse” over the letters by personally approaching the Queen and ask her to release them. Hill has since diligently pursued Turnbull over his forgotten promise to ask the Queen to release the Palace letters. Hill placed a question on notice to Turnbull in the House on the final sitting day last year, asking whether the Prime Minister had approached the Queen seeking the release these letters and if so what her response had been. For the next eight months, Turnbull simply refused to answer, despite being twice prompted by the Speaker to do so. Finally, on the eve of the hearing in the Palace letters case last week, the Prime Minister’s office responded: “Discussions/communications between the Prime Minister and Her Majesty the Queen are confidential.” Turnbull’s resort to Royal secrecy could not have been more fitting.
It seems that not even our avowedly republican Prime Minister can escape the vestiges of colonialism that continue to deny us access to our own history. It’s time we ended these residual ties of dependency, secrecy and colonial deference, and became an Australian republic.
*Professor Jenny Hocking, is author of the award-winning two-volume biography Gough Whitlam: A Moment in History and Gough Whitlam: His Time. Her latest books are The Dismissal Dossier: Everything You Were Never Meant to Know About November 1975 and the edited collection Making Modern Australia: Gough Whitlam’s 21st Century Agenda.