Jennifer Robinson
Palace letters highlight undemocratic secrecy

The dismissal of prime minister Gough Whitlam is often described as the greatest political and constitutional crisis in Australian history. On November 11, 1975, our democratically elected government led by Whitlam was dismissed by the governor-general, Sir John Kerr, as the Queen’s representative in Australia. The event sparked public outcry and a debate about the constitutional relationship between the Australian people, our government and the British monarchy – and Australia’s independence – which continues to this day. The public interest in understanding this key event in Australian history is self-evident. Yet a divided Federal Court found this month that the infamous “palace letters”, exchanged between Queen Elizabeth II and then governor-general Kerr at that time, are to remain hidden from the public.

After the release of Kerr’s official papers from the National Archives of Australia in 2005, historian Professor Jenny Hocking was able to document the high level of orchestration that occurred between Kerr and the then opposition leader, Malcolm Fraser. But she also found evidence of what many had previously denied – the palace not only knew of Kerr’s intention to dismiss Whitlam in the months beforehand, it was also involved in the deliberations. So, what did the Queen have to say about it and how did that influence Kerr’s exercise of his constitutional power, as her majesty’s representative, to dismiss our prime minister?

We don’t know. The answer is hidden in the palace letters, which are included in Kerr’s papers but are blocked from release from the National Archives because they are classified as “private” and not official Commonwealth records. This means they are embargoed until at least 2027, with the Queen – or her private secretary – retaining a veto over their release even after that date.

As Hocking has said, we cannot properly understand this part of Australian history – and the operation of our democracy – without having access to this information. For this reason, she sued for access to the documents. The Grata Fund, Australia’s first independent, crowdsourced public interest fund, of which I am director, is supporting Hocking in her case.

The central question in the Federal Court appeal was whether the palace letters are simply the “personal” property of the Queen and Kerr, who died in 1991, or whether they should be categorised as “Commonwealth records”, which would allow public access.

Despite the fact the court agreed most of the letters “address topics related to the official duties and responsibilities of the Governor-General” – and not their musings on the weather – the court, divided two to one, decided to continue to conceal the correspondence between Kerr and the Queen, deeming it “personal”. This means the Australian public has no right to see the correspondence, unless the Queen so decides.

While many Australians would prefer we took our place as an independent nation in the world and became a republic, we remain a constitutional monarchy. Our constitution dictates an official relationship between the Queen, the governor-general and this country. For this reason, correspondence between the Queen and her Australian representative at a time when the governor-general exercised his constitutional power to dismiss a sitting prime minister goes, as the dissenting Justice Geoffrey Flick said, to “the very core of the democratic processes of this country”.

Indeed, as Justice Flick concluded, it is “difficult to conceive of documents which are more clearly ‘Commonwealth records’ and documents which are not ‘personal’ property”. They should be made public.

It was an attempt to modernise the Australian constitution – the failed “14 powers” referendum of 1944 – that first drew Gough Whitlam into politics. As a young volunteer, he fought for the reforms to matters on which the federal government could legislate and his “hopes were dashed by the outcome”. He committed to doing all he could to ensure those changes would one day be made, finishing his law degree and joining the Australian Labor Party in 1945. His life in politics saw many of the proposed changes to the federal government’s powers come to fruition, including the right to make laws for Indigenous Australians and to enact a national healthcare scheme.

But Whitlam could not have known in 1945 that his future actions would lead to some of the most important constitutional questions in Australian history. Nor could he have foreseen how questions concerning our constitutional relationship with the monarchy would, in 2019, remain shrouded in secrecy.

The palace letters decision should spark a serious conversation in Australia about our constitutional relationship with the monarchy and the extent to which that relationship should be subject to public scrutiny. But the decision also highlights how laws designed to give Australians access to information are instead used to keep the public in the dark. It was only through the dedicated determination of Professor Hocking that this case came this far. A High Court appeal is under consideration. For her efforts in pursuing this important matter of public interest, Hocking was ordered to pay $30,000 in legal costs.

Like the law governing the palace letters, the practical operation of Australia’s freedom of information laws shows why ordinary Australians cannot properly interrogate government action. Despite narrow legal grounds for concealing documents under our freedom of information laws, government agencies routinely refuse to release them. Appeals are long and costly. Final decisions may take years and challenging decisions to refuse access to documents – as in this case – can run to many, many thousands of dollars. The cost is too high for most, and so the information remains hidden and unpublished. The difficulty and expense of access to information in Australia unduly limits our ability to hold government to account and undermines our democracy. This needs to change.

That’s why Grata is supporting journalists, non-government organisations and the Australian public to pursue more freedom of information claims, and to make access, not secrecy, the default position. We are working to open access to justice and make our governments more transparent and accountable.

This article was first published in the print edition of The Saturday Paper on February 23, 2019 as "Buckingham nixed".

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Jennifer Robinson is a human rights lawyer and a founding director of Grata Fund.

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