High Court ruling favours release of 'Palace Papers' on Whitlam Dismissal

The High Court has ruled that hundreds of letters between the Queen and former governor-general Sir John Kerr before the dismissal of the Whitlam government are public records, paving the way for the release of the potentially explosive documents.

Professor Jenny Hocking, a political historian who has written extensively on Labor figures including former prime minister Gough Whitlam and his attorney-general Lionel Murphy, fought for a decade for access to the letters to help shed light on what Buckingham Palace knew before the Dismissal in November 1975.

Professor Jenny Hocking, with a statue of Queen Victoria behind her, took her fight for the release of the 211 'Palace Papers' letters to the High Court. Credit: AAP

Her fight included a three-and-a-half-year, million-dollar legal battle with the National Archives, which insisted the letters were "personal" records that sat outside a statutory regime providing for the release of Commonwealth records after 30 years.

Professor Hocking said the historic decision ends "decades of residual British control over Australian archival material, kept from us in the name of the Queen through the exercise of an alleged Royal veto".

"It is astonishing and has been demeaning to Australia as an independent nation that access to the Queen’s correspondence with Australian Governors-General has been controlled by the Queen," she said.

Gough Whitlam, pictured in 1972, established the predecessor to the National Archives. Historian Jenny Hocking has long been seeking papers relating to his dismissal from office.Credit: George Lipman

The National Archives' classification of the 211 letters as personal rather than Commonwealth records meant they were embargoed until at least 2027, and the Queen held a final veto over their release.

Professor Hocking brought her first legal challenge to access the documents in October 2016. She lost that round in the Federal Court in March 2018 and appealed to the Full Court of the Federal Court, which dismissed her appeal in February last year by a majority of two judges to one.

The High Court granted special leave last August to appeal against the Full Court's decision.

A 6-1 majority of the High Court ruled on Friday the letters were Commonwealth records. It ordered the National Archives to pay Professor Hocking's legal costs of the entire dispute, including the Federal Court hearings and the appeal.

The decision compels the National Archives to reconsider Professor Hocking's access request.

Professor Hocking called on the National Archives to release the letters immediately. The correspondence also includes letters between Sir John and Prince Charles.

The National Archives may still be able to argue an exemption applies under the Archives Act to keep the documents secret, but this is considered relatively unlikely.

"We have faced a formidable institutional force in seeking access to the Palace letters from the National Archives of Australia, even more so with the involvement of the Attorney-General’s department at this final appeal," Professor Hocking wrote earlier this year.

"The federal Attorney-General joined the Archives in the High Court appeal in claiming that the correspondence between the Queen and the Governor-General is personal ... and closed to the Australian public."

Professor Hocking's barrister, Bret Walker, SC, told the High Court last year it was "absurd" to suggest the letters were not the property of the Commonwealth. Mr Walker drew a potential distinction between official letters and a "Christmas card to someone in the Windsor family".

In a joint judgment, High Court Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler and Patrick Keane said "the correspondence was the property of the official establishment of the Governor-General", and the documents were Commonwealth records.

Justices Michelle Gordon and James Edelman reached the same result in separate judgments.

In a dissenting judgment, Justice Geoffrey Nettle said the Governor-General was neither "the Commonwealth" nor a "Commonwealth institution" and his letters to the Queen were personal records.

Peter FitzSimons, chair of the Australian Republic Movement and Herald columnist, welcomed the decision and said the case highlighted "the ridiculousness of having an unelected British monarch involved in Australia's affairs".

"These letters provide a crucial historical context around one of the most destabilising and controversial chapters in Australian political history," Mr FitzSimons said.

National Archives Director-General David Fricker said: "We accept the High Court's judgment and will now get to work examining these historically significant records for release under the provisions of the Archives Act.

"The National Archives is a pro-disclosure organisation. We operate on the basis that a Commonwealth record should be made publicly available, unless there is a specific and compelling need to withhold it."