High Court rules in favour of releasing letters between the Queen and Sir John Kerr over Gough Whitlam’s dismissal

Landmark judgment says letters between the Queen and Sir John Kerr before Gough Whitlam’s sacking are public records.

Gough Whitlam and then governor-general Sir John Kerr greet the Queen during an Australian Royal Tour.

The High Court has ruled that hundreds of letters between the Queen and former governor-general Sir John Kerr about the Dismissal of the Whitlam government are public records and should be released.

The landmark judgment handed down on Friday comes after a four-year legal battle by historian Jenny Hocking, who says Australians deserve to know the full story behind the greatest political and constitutional crisis in the nation’s history.

Professor Jenny Hocking. Picture: AAP

The so-called palace letters between Buckingham Palace and Sir John Kerr about the time of the 1975 dismissal had been deemed “personal communications” by the National Archives of Australia and the Federal Court.

Ms Hocking spent years attempting to secure the release of the 211 letters through the courts – a bid that was resisted by the NAA.

Ms Hocking welcomed the decision on Friday as a victory for the historical record and transparency and called on the archive to release the sensitive correspondence immediately.

“I look forward to the immediate release of all 211 of the Palace letters by the National Archives, so that the full story of the dismissal including the possible role of the Palace can now be known,” she said on Friday.

“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 she would be horrified if the request would be refused and the historic decision had effectively ended decades of residual British control over Australian archival material.

The so-called palace letters between Buckingham Palace and Sir John Kerr about the time of the 1975 dismissal had been deemed personal communications by the NAA and the Federal Court.

That meant they couldn't be released until 2027, and only then with the permission of the Queen.

But a majority of the High Court's full bench has ruled it was wrong to withhold the letters as they are in fact commonwealth property.

Although the letters were described as personal and confidential, they were the property of the official establishment of the governor-general, a commonwealth institution, the judgment says.

The court ordered the archives to reconsider Professor Hocking's request to access the letters, and pay costs for her four-year legal battle, including the High Court appeal.

"A 'Commonwealth record' within the care of the archives must be made available for public access once the record is within the 'open access period'," the judgment from Chief Justice Susan Kiefel and Justices Virginia Bell, Stephen Gageler and Patrick Keane says.

In the case of the letters, that period is 31 years after creation, meaning they should have become public in 2006.

Justices James Edelman and Michelle Gordon agreed the letters were commonwealth records, although published separate reasons.

Justice Gordon said some of the letters' contents may be considered personal.

Justice Geoffrey Nettle made a dissenting judgment, saying the letters should not be deemed commonwealth property simply because Sir John held public office.

Ms Hocking was represented by prominent Sydney silk Bret Walker SC and Tom Brennan.